Exhibit 10.1

FIFTEENTH AMENDMENT

TO CREDIT AGREEMENT AND

FIRST AMENDMENT TO SECURITY AGREEMENT

This FIFTEENTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SECURITY AGREEMENT (this “Amendment”), is entered into as of May 10, 2024, among Loar Holdings Inc., a Delaware corporation (f/k/a Loar Holdings, LLC, “Holdings”), the other Guarantors party hereto, Loar Group Inc., a Delaware corporation (as successor by merger to Loar Merger Sub, Inc., the “Borrower”), the Lenders party hereto, First Eagle Alternative Credit, LLC (as successor by merger to First Eagle Private Credit, LLC (f/k/a NewStar Financial, Inc.)), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and as collateral agent for the Secured Parties (in such capacity, the “Collateral Agent”) and Citibank, N.A., as the Revolving Administrative Agent (as defined below).

WITNESSETH:

WHEREAS, Holdings, the Borrower, the Guarantors party thereto from time to time, the Lenders party thereto from time to time, the Administrative Agent and the Collateral Agent are parties to that certain Credit Agreement, dated as of October 2, 2017 (as amended by the First Amendment to Credit Agreement, dated as of August 10, 2018, the Second Amendment to Credit Agreement, dated as of October 26, 2018, the Third Amendment to Credit Agreement, dated as of December 21, 2018, the Fourth Amendment to Credit Agreement, dated as of May 17, 2019, the Fifth Amendment to Credit Agreement, dated as of October 16, 2019, the Sixth Amendment to Credit Agreement, dated as of April 2, 2020, the Seventh Amendment to Credit Agreement, dated as of April 17, 2020, the Eighth Amendment to Credit Agreement, dated as of December 28, 2020, the Ninth Amendment to Credit Agreement, dated as of April 1, 2022, the Tenth Amendment to Credit Agreement, dated as of May 20, 2022, the Eleventh Amendment to Credit Agreement, dated as of July 28, 2022, the Twelfth Amendment to Credit Agreement, dated as of June 30, 2023, the Thirteenth Amendment to Credit Agreement, dated as of March 26, 2024, the Fourteenth Amendment to Credit Agreement, dated as of April 10, 2024, and as otherwise amended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement” and, as amended by this Amendment, the “Amended Credit Agreement”; capitalized terms used herein (including in the preamble hereto) that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Amended Credit Agreement); and

WHEREAS, Holdings, the Borrower, the other Grantors (as defined in the Security Agreement) party thereto from time to time and the Collateral Agent are party to that certain Security Agreement, dated as of October 2, 2017 (as amended, supplemented or otherwise modified prior to the date hereof, the “Security Agreement” and, as amended by this Amendment, the “Amended Security Agreement”);

WHEREAS, the Borrower hereby notifies the Administrative Agent that, immediately prior to giving effect to the Extension Amendment (as defined below), pursuant to Section 2.07(d) of the Credit Agreement, it desires to terminate all existing Revolving Credit Commitments outstanding immediately prior to the Fifteenth Amendment Effective Date (as defined below) (the “Existing Revolving Credit Commitments”);

WHEREAS, the Borrower hereby notifies the Administrative Agent that, immediately prior to giving effect to the Extension Amendment (as defined below), pursuant to Section 2.07(d) of the Credit Agreement, it desires to terminate all existing Delayed Draw Term Loan Commitments outstanding immediately prior to the Fifteenth Amendment Effective Date (as defined below) (the “Existing Delayed Draw Term Loan Commitments”);

WHEREAS, as contemplated by Sections 2.16 and 10.02 of the Credit Agreement, (x) the Borrower has requested that each existing Lender under the Credit Agreement that holds any Term Loans (each, an “Existing Term Lender”) extend the maturity of each existing Class of Term Loans (the “Existing Term Loans”) and convert such Existing Term Loans into a single class of Extended Term Loans (the “Extended Term Loans”) and to make certain other amendments to the Credit Agreement;

WHEREAS, each existing Lender under the Credit Agreement (the “Existing Lenders”) party hereto (which, for the avoidance of doubt, constitute all Lenders under the Credit Agreement) has agreed, subject to the satisfaction of the conditions precedent to effectiveness set forth in Section 6 hereof, to convert its Existing Term Loans to Extended Term Loans and amend certain terms of the Credit Agreement as provided herein pursuant to the Extension Amendment (as defined below);

WHEREAS, the Borrower, the Lenders party hereto, the Grantors and the Collateral Agent desire to amend the Security Agreement in accordance with Section 18 thereof;

WHEREAS, pursuant to and in accordance with Section 2.17 and Section 10.02 of the Credit Agreement immediately after giving effect to the Extension Amendment on the Fifteenth Amendment Effective Date, and subject to the occurrence thereof, the Borrower has requested that the 2024 Revolving Lenders (as defined below) provide Incremental Revolving Credit Commitments in an aggregate principal amount of $50,000,000, and each 2024 Revolving Lender has agreed to extend credit to the Borrower in the form of Incremental Revolving Credit Commitments (as defined in the Amended Credit Agreement) on the Fifteenth Amendment Effective Date (as defined below) in the principal amount set forth opposite its name on Schedule I hereto under the heading “2024 Incremental Revolving Credit Commitment” (such revolving commitments, the “2024 Revolving Credit Commitments”), in each case on the terms set forth herein and in the Amended Credit Agreement after giving effect to the Incremental Amendment (as defined below);

WHEREAS, pursuant to and in accordance with Section 2.17 and Section 10.02 of the Credit Agreement immediately after giving effect to the Extension Amendment on the Fifteenth Amendment Effective Date, and subject to the occurrence thereof, the Borrower has requested that the 2024 Delayed Draw Term Loan Lenders (as defined below) provide Incremental Term Loan Commitments (as defined in the Amended Credit Agreement) consisting of delayed draw term loan commitments in an aggregate principal amount of $100,000,000, and each 2024 Delayed Draw Term Loan Lender has agreed to extend credit to the Borrower in the form of such Incremental Term Loan Commitments on the Fifteenth Amendment Effective Date (as defined below) in the principal amount set forth opposite its name on Schedule I hereto under the heading “2024 Delayed Draw Term Loan Commitment” (such commitments, the “2024 Delayed Draw Term Loan Commitments”), in each case on the terms set forth herein and in the Amended Credit Agreement after giving effect to the Incremental Amendment (as defined below);

WHEREAS, as contemplated and permitted by Sections 2.07, 2.16, 2.17 and 10.02 of the Credit Agreement and the Amended Credit Agreement immediately after giving effect to the Extension Amendment on the Fifteenth Amendment Effective Date and Section 18 of the Security Agreement, (x) the Borrower, the Guarantors and Grantors party hereto, the Administrative Agent, the Revolving Administrative Agent (as defined below), and the Lenders party hereto (which Lenders, for the avoidance of doubt, constitute 100% of the Lenders under the Credit Agreement immediately after giving effect to the Extension Amendment, the 2024 Revolving Credit Commitments and the 2024 Delayed Draw Term Loan Commitments), have agreed, subject to the satisfaction of the conditions precedent to effectiveness set forth in Section 6 hereof, to amend certain terms of the Credit Agreement and the Security Agreement on the Fifteenth Amendment Effective Date as hereinafter provided.

 

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NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto agree as follows:

SECTION 1. Existing Revolving Credit Commitments. Effective as of the Fifteenth Amendment Effective Date, all Existing Revolving Credit Commitments are hereby terminated in their entirety in accordance with Section 2.07(d) of the Credit Agreement and each Existing Lender holding Existing Revolving Credit Commitments and the Administrative Agent and each Lender party hereto hereby waives the advance notice required thereby.

SECTION 2. 2024 Revolving Credit Commitments. Pursuant to Section 2.17 of the Credit Agreement (immediately after giving effect to the Extension Amendment), and subject solely to the satisfaction of the conditions precedent set forth in Section 6 hereof and in reliance on the representations and warranties set forth herein, immediately after giving effect to the Extension Amendment on the Fifteenth Amendment Effective Date and subject to the occurrence thereof:

(a) each Lender with a 2024 Incremental Revolving Credit Commitment set forth opposite its name on Schedule I hereto under the heading “2024 Incremental Revolving Credit Commitment” (each, a “2024 Revolving Lender”) hereby commits to (i) provide to the Borrower such 2024 Incremental Revolving Credit Commitment set forth opposite its name under the heading “2024 Incremental Revolving Credit Commitment” on such Schedule I and (ii) act as an Issuing Bank under the Amended Credit Agreement and provide to the Borrower such LC Commitments (as defined in the Amended Credit Agreement) set forth opposite its name under the heading “LC Commitment” on such Schedule I, in each case on the terms set forth herein and in the Amended Credit Agreement after giving effect to the Incremental Amendment;

(b) the Borrower hereby designates that all of the 2024 Incremental Revolving Credit Commitments are being incurred in reliance on clause (E) of the definition of Available Incremental Amount in the Credit Agreement (as amended by the Extension Amendment); and

(c) the proceeds of the 2024 Incremental Revolving Credit Commitments shall be used by the Borrower in accordance with Section 5.08 of the Amended Credit Agreement.

SECTION 3. 2024 Delayed Draw Term Loan Commitments. Pursuant to Section 2.17 of the Credit Agreement (immediately after giving effect to the Extension Amendment), and subject solely to the satisfaction of the conditions precedent set forth in Section 6 hereof and in reliance on the representations and warranties set forth herein, immediately after giving effect to the Extension Amendment on the Fifteenth Amendment Effective Date and subject to the occurrence thereof:

(a) each Lender with a 2024 Delayed Draw Term Loan Commitment set forth opposite its name on Schedule I hereto under the heading “2024 Delayed Draw Term Loan Commitment” (each, a “2024 Delayed Draw Term Loan Lender”) hereby commits to provide to the Borrower such 2024 Delayed Draw Term Loan Commitment set forth opposite its name under the heading “2024 Delayed Draw Term Loan Commitment” on such Schedule I on the terms set forth herein and in the Amended Credit Agreement after giving effect to the Incremental Amendment;

(b) the Borrower hereby designates that all of the 2024 Delayed Draw Term Loan Commitments are being incurred in reliance on clause (F) of the definition of Available Incremental Amount in the Credit Agreement (as amended by the Extension Amendment); and

(c) the proceeds of the 2024 Delayed Draw Term Loan Commitments shall be used by the Borrower in accordance with Section 5.08 of the Amended Credit Agreement.

 

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SECTION 4. Amendments to Loan Documents. Upon satisfaction (or waiver by the Lenders) of the conditions set forth in Section 6 hereof:

(a) Effective as of the Fifteenth Amendment Effective Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached as Exhibit A hereto, except for the Incremental Amendment (the amendments in this clause (a), the “Extension Amendment”). The Administrative Agent and each Lender party hereto hereby agree that this Amendment constitutes an Extension Request and waives the advance notice required in connection with such Extension Amendment.

(b) Immediately after giving effect to the Extension Amendment on the Fifteenth Amendment Effective Date and subject to the occurrence thereof, and subject to the terms and conditions set forth herein, the Credit Agreement (as amended by the Extension Amendment) is, effective as of the Fifteenth Amendment Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text), and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached as Exhibit A hereto, in each case to the extent relating to the 2024 Incremental Revolving Credit Commitments and the 2024 Delayed Draw Term Loan Commitments (the amendments in this clause (b), the “Incremental Amendment”). The Administrative Agent and each Lender party hereto hereby waives the advance notice required in connection with such Incremental Amendment.

(c) (A) Schedule 2.01 of the Credit Agreement is hereby amended and restated in its entirety as set forth on Schedule I attached hereto and (B) each other schedule to the Credit Agreement (other than Schedule 5.17) is hereby amended and restated in its entirety as set forth on Exhibit B attached hereto.

(d) Exhibits B, C and D of the Credit Agreement are hereby amended and restated in their entirety as set forth on Exhibits C, D and E attached hereto.

(e) Effective as of the Fifteenth Amendment Effective Date, the Security Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Security Agreement attached as Exhibit F hereto.

SECTION 5. Accession of Revolving Administrative Agent and Issuing Banks. The parties hereto hereby agree and confirm that, as of the Fifteenth Amendment Effective Date, (i) Citibank, N.A. shall accede to the rights and obligations of the Revolving Administrative Agent under the Amended Credit Agreement and shall become vested with all of the rights, powers, privileges and assumes all of the obligations, responsibilities and duties of the Revolving Administrative Agent as set forth in the Amended Credit Agreement (Citibank, N.A. in such capacity, the “Revolving Administrative Agent”) and (ii) each 2024 Revolving Lender with an LC Commitment set forth opposite its name under the heading “LC Commitment” on Schedule I hereto shall accede to the rights and obligations of an Issuing Bank under the Amended Credit Agreement and shall become vested with all of the rights, powers, privileges and assumes all of the obligations, responsibilities and duties of an Issuing Bank as set forth in the Amended Credit Agreement.

 

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SECTION 6. Conditions to Effectiveness of this Amendment. This Amendment shall become effective on the date (the “Fifteenth Amendment Effective Date”) by which there shall have occurred the prior or concurrent fulfillment of each of the conditions precedent set forth in this Section 6.

(a) Amendment Documents. There shall have been delivered (i) to the Agents, a counterpart of this Amendment, duly executed by each existing Lender, the Revolving Lenders and each other person contemplated to be a party hereto (ii) to Blackstone, a counterpart of the DDTL Fee Letter, duly executed by the Borrower.

(b) Corporate Documents. There shall have been delivered to the Agents: (i) customary certificates of the secretary or assistant secretary of each Loan Party organized in the United States dated the Fifteenth Amendment Effective Date, certifying: (1) that attached thereto is a true, correct and complete copy of each Organizational Document of such Loan Party, certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization (or other applicable Governmental Authority of its jurisdiction of organization) (or, with respect to any Loan Party, certifying that there has been no change since the most recent Organizational Document of such Loan Party delivered to the Administrative Agent); (2) that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (3) as to the incumbency and specimen signature of each officer executing this Amendment or any other document delivered in connection therewith on behalf of such Loan Party; and (ii) a certificate as to the good standing of each Loan Party (other than a Loan Party organized under the laws of Germany) as of a recent date, from the Secretary of State (or other applicable Governmental Authority) of the jurisdiction of its organization.

(c) Opinions of Counsel. There shall have been delivered to the Agents, a customary written opinion of each of (i) Ropes & Gray LLP, counsel to the Loan Parties; (ii) Benesch, Friedlander, Coplan & Aronoff, Ohio counsel and (iii) Cozen O’Connor, Pennsylvania counsel.

(d) Prepayment of Outstanding Revolving Loans; Fees & Expenses.

(i) All outstanding Revolving Loans (if any) shall have been prepaid in full in accordance with Section 2.09 of the Credit Agreement (provided that each Existing Lender holding Existing Revolving Credit Commitments and the Administrative Agent hereby waives the advance notice required thereby).

(ii) All fees owed to the Existing Lenders holding Revolving Credit Commitments (as defined in the Credit Agreement) under the Credit Agreement pursuant to Section 2.05 of the Credit Agreement through, but excluding, the Fifteenth Amendment Effective Date, and all fees, costs and expenses (in the case of expenses, to the extent invoiced at least three (3) Business Days prior to the Fifteenth Amendment Effective Date (except as otherwise reasonably agreed by the Borrower)), required to be paid pursuant to Section 16 hereof shall have been paid, or shall be paid substantially concurrently with the occurrence of the Fifteenth Amendment Effective Date.

(e) Personal Property Requirements. There shall have been delivered to the Agents copies of customary UCC, tax and judgment lien searches or equivalent reports or searches, each of a recent date.

(f) Solvency Certificate. There shall have been delivered to the Agents a solvency certificate substantially in the form of Exhibit I to the Credit Agreement, mutatis mutandis, dated the Fifteenth Amendment Effective Date and signed by a Financial Officer of Holdings.

 

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(g) Officer’s Certificate. There shall have been delivered to the Agents an Officer’s Certificate, dated the Fifteenth Amendment Effective Date, confirming compliance with the conditions precedent set forth in clauses (h) and (i) of this Section 6, other than such conditions precedent the satisfaction of which are in the discretion of an Agent, the Required Lenders or the Lenders.

(h) No Default or Event of Default. As of the Fifteenth Amendment Effective Date, immediately before and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.

(i) Representations and Warranties. As of the Fifteenth Amendment Effective Date, the representations and warranties set forth in Section 7 below shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects after giving effect to such qualification and other than those representations and warranties that are expressly made as of an earlier specified date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier specified date).

(j) USA Patriot Act. The Agents shall have received all documentation and other information about the Loan Parties required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) at least three (3) Business Days prior to the Fifteenth Amendment Effective Date (to the extent such documentation and information has been requested by any Agent and/or Lender (as applicable) not less than eight (8) Business Days prior to the Fifteenth Amendment Effective Date.

(k) German Closing Deliverables. There shall have been delivered to the Agents each of the items set forth in Schedule II hereto.

SECTION 7. Representations and Warranties. On and as of the Fifteenth Amendment Effective Date, each Loan Party represents and warrants to each of the Agents and each of the Lenders:

(a) Authorization; Enforceability. The entering into of the Amendment by each Loan Party is within such Loan Party’s powers and has been duly authorized by all necessary limited liability company, partnership or corporate action on the part of such Loan Party. The Amendment has been duly executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(b) No Conflicts. The entering into of the Amendment by each Loan Party (i) does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (1) such as have been obtained or made and are in full force and effect, (2) filings necessary to perfect Liens created by the Loan Documents and (3) consents, approvals, registrations, filings, permits or actions the failure to obtain or perform which could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (ii) will not violate the Organizational Documents of any Loan Party; (iii) will not violate any Requirement of Law; (iv) will not violate or result in a default or require any consent or approval under any indenture, agreement or other instrument binding upon any Company or its property, or give rise to a right thereunder to require any payment to be made by any Company; (v) will not violate any order, judgment or decree of any court or other agency of government binding on any Company; and (vi) will not result in the creation or imposition of any Lien on any property of any Company, except Liens created by the Loan Documents and Permitted Liens; except in the case of clauses (i), (iii), (iv), and (v) to the extent such violation, conflict, breach or default could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

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(c) Credit Agreement Representations. Immediately before and immediately after giving effect to this Amendment, the representations and warranties set forth in Article III of the Credit Agreement and each other Loan Document are true and correct in all material respects on and as of the Fifteenth Amendment Effective Date (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects after giving effect to such qualification and other than those representations and warranties that are expressly made as of an earlier specified date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier specified date).

SECTION 8. German Post-Closing Requirements. Not later than thirty (30) days after the Fifteenth Amendment Effective Date the applicable Loan Parties shall have satisfied each of the requirements set forth on Schedule III hereto.

SECTION 9. Ratification of Liability. As of the Fifteenth Amendment Effective Date, the Borrower and the other Loan Parties, as debtors, grantors, pledgors, guarantors, assignors, or in other similar capacities in which such parties grant liens or security interests in their properties or otherwise act as accommodation parties or guarantors, as the case may be, under the Loan Documents to which they are a party, hereby ratify and reaffirm all of their payment and performance obligations and obligations to indemnify, contingent or otherwise, under each of such Loan Documents to which they are a party, and ratify and reaffirm their grants of liens on or security interests in their properties pursuant to such Loan Documents to which they are a party, respectively, as security for the Obligations, and as of the Fifteenth Amendment Effective Date, each such Person hereby confirms and agrees that such liens and security interests hereafter secure all of the Obligations, including all additional Obligations hereafter arising or incurred pursuant to or in connection with the Amendment, the Amended Credit Agreement or any other Loan Document. As of the Fifteenth Amendment Effective Date, the Borrower and the other Loan Parties further agree and reaffirm that the Loan Documents to which they are parties now apply to all Obligations as defined in the Amended Credit Agreement (including all additional Obligations hereafter arising or incurred pursuant to or in connection with this Amendment, the Amended Credit Agreement or any other Loan Document). As of the Fifteenth Amendment Effective Date, the Borrower and the other Loan Parties (a) further acknowledge receipt of a copy of the Amendment, (b) consent to the terms and conditions of same, and (c) agree and acknowledge that each of the Loan Documents to which they are a party remain in full force and effect and is hereby ratified and confirmed.

SECTION 10. Reference to and Effect upon the Credit Agreement.

(a) Except as specifically amended hereby, all terms, conditions, covenants, representations and warranties contained in the Amended Credit Agreement and other Loan Documents, and all rights of the Secured Parties and all of the Obligations, shall remain in full force and effect. As of the Fifteenth Amendment Effective Date, the Borrower and the other Loan Parties hereby confirm that the Amended Credit Agreement and the other Loan Documents are in full force and effect and that neither the Borrower nor any other Loan Party has any right of setoff, recoupment or other offset or any defense, claim or counterclaim with respect to any of the Obligations, the Amended Credit Agreement or any other Loan Document.

 

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(b) Except as specifically set forth herein, the execution, delivery and effectiveness of this Amendment shall not directly or indirectly (i) constitute a consent or waiver of any past, present or future violations of any provisions of the Credit Agreement or any other Loan Documents nor constitute a novation of any of the Obligations under the Credit Agreement or other Loan Documents or (ii) constitute a course of dealing or other basis for altering any Obligations or any other contract or instrument.

(c) From and after the Fifteenth Amendment Effective Date, (i) the term “Agreement” in the Credit Agreement, and all references to the Credit Agreement in any other Loan Document, shall mean the Credit Agreement, as amended by, among other things, this Amendment, (ii) the term “Loan Documents” in the Credit Agreement and the other Loan Documents shall include the Amendment and any agreements, instruments and other documents executed and/or delivered in connection herewith, (iii) the Extended Term Loans shall constitute “Initial Term Loans” and “Term Loans,” in each case, under and as defined in the Amended Credit Agreement, (iv) the 2024 Incremental Revolving Credit Commitments shall constitute “Revolving Credit Commitments” and “Incremental Revolving Credit Commitments,” in each case, under and as defined in the Amended Credit Agreement and (v) the 2024 Delayed Draw Term Loan Commitments shall constitute “Delayed Draw Term Loan Commitments” and “Term Commitments,” in each case, under and as defined in the Amended Credit Agreement.

(d) On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a “Loan Document”, an “Extension Amendment” and an “Incremental Amendment”, in each case, under and as defined in the Amended Credit Agreement and the other Loan Documents.

(e) This Amendment shall not be deemed or construed to be a satisfaction, reinstatement, novation or release of the Credit Agreement or any other Loan Document.

SECTION 11. Governing Law; Jurisdiction; Consent to Service of Process. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. THE PROVISIONS OF SECTION 10.09(b), (c) and (d) OF THE AMENDED CREDIT AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE, MUTATIS MUTANDIS, AS IF FULLY SET FORTH HEREIN.

SECTION 12. Counterparts; Integration. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment and any separate letter agreements with respect to fees payable to the Agents or the Lenders listed on the signature pages hereto, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Amendment by telecopier or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.

SECTION 13. Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 14. Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.

SECTION 15. Notices. All notices, requests, and demands to or upon the respective parties hereto shall be given in accordance with the Amended Credit Agreement.

 

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SECTION 16. Expenses. The Borrower agrees to pay all reasonable documented out-of-pocket expenses of Paul Hastings LLP, counsel to the Administrative Agent and the Collateral Agent, Willkie Farr & Gallagher LLP, counsel to the Existing Lenders, and Cravath Swaine & Moore LLP, counsel to the Revolving Administrative Agent, in connection with the negotiation, preparation, execution and delivery of this Amendment, as well as ongoing reasonable documented out-of-pocket expenses incurred after the Fifteenth Amendment Effective Date in connection herewith, in each case in accordance with Section 10.03 of the Amended Credit Agreement.

SECTION 17. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17.

SECTION 18. Agent Authorization. Each of the undersigned Lenders hereby authorizes the Agents to execute and deliver this Amendment and the other documents entered into in connection herewith on its behalf, and by its execution below, each of the undersigned Lenders agrees to be bound by the terms and conditions of this Amendment and such other documents.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

[Signature Page to Fifteenth Amendment to Credit Agreement

and First Amendment to Security Agreement]

 

[Signature Page to Fifteenth Amendment to Credit Agreement

and First Amendment to Security Agreement]

FIRST EAGLE ALTERNATIVE CREDIT, LLC (as successor by merger to FIRST EAGLE PRIVATE CREDIT, LLC (f/k/a NEWSTAR FINANCIAL, INC.)), as Administrative Agent and Collateral Agent
By:		/s/ Renee Cedorchuk
		Name: Renee Cedorchuk
		Title: Vice President, Operations

 

[Signature Page to Fifteenth Amendment to Credit Agreement

and First Amendment to Security Agreement]

 

[Signature Page to Fifteenth Amendment to Credit Agreement

and First Amendment to Security Agreement]

GSO COF III AIV-1 LP, as a Lender
By: GSO Capital Opportunities Associates III LLC, its general partner
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
GSO COF III AIV-4 LP, as a Lender
By: GSO Capital Opportunities Associates III LLC, its general partner
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
GSO BARRE DES ECRINS MASTER FUND SCSP, as a Lender
By: Blackstone Alternative Credit Advisors LP, its Investment Adviser
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
GSO BROOME STREET LLC, as a Lender
By: GSO Orchid Fund LP, its Member
By GSO Orchid Associates LLC, its General Partner
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory

BCRED DENALI PEAK FUNDING LLC, as a Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED SUMMIT PEAK FUNDING LLC, as a Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED MML CLO 2023-1 LLC, as a Lender
By: Blackstone Private Credit Fund, as Collateral Manager
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory

BCRED MML CLO 2022-1 LLC, as a Lender
By: Blackstone Private Credit Fund, as Collateral Manager
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED MML CLO 2021-1 LLC, as a Lender
By: Blackstone Private Credit Fund, as Collateral Manager
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BLACKSTONE PRIVATE CREDIT FUND, as a Lender
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED BISON PEAK FUNDING LLC, as a Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory

BCRED WINDOM PEAK FUNDING LLC, as a Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED BUSHNELL PEAK FUNDING LLC, as a Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED GRANITE PEAK FUNDING LLC, as a Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED HAYDON PEAK FUNDING LLC, as an Additional Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory

BCRED MIDDLE PEAK FUNDING LLC, as a Lender
By: Blackstone Private Credit Fund, its sole member
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory
BCRED MML CLO 2022-2 LLC, as a Lender
By: Blackstone Private Credit Fund, as Collateral Manager
By: Blackstone Credit BDC Advisors LLC, as investment advisor
By:		/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory

Annex A

Conformed through the FourteenthFifteenth Amendment to Credit Agreement, dated as of AprilMay 10, 2024

 

 

 

CREDIT AGREEMENT

dated as of October 2, 2017

among

LOAR HOLDINGS, LLC, INC.,

as Holdings,

LOAR MERGER SUB, INC.,

as the Initial Borrower,

(to be merged with and into LOAR GROUP INC. pursuant to the Closing Date Merger, with LOAR GROUP INC.

as the surviving person and the Borrower hereunder upon and following the consummation of the Closing Date Merger),

THE GUARANTORS PARTY HERETO,

as Guarantors,

THE LENDERS PARTY HERETO,

and

FIRST EAGLE ALTERNATIVE CREDIT, LLC (as successor by merger to FIRST EAGLE PRIVATE CREDIT, LLC (f/k/a NEWSTAR FINANCIAL, INC.)), as Administrative Agent and Collateral Agent,

and

CITIBANK, N.A.,

as Revolving Administrative Agent

 

 

 

TABLE OF CONTENTS

 

				Page
ARTICLE I		DEFINITIONS			2
SECTION 1.01		Defined Terms			2
SECTION 1.02		Classification of Loans			6064
SECTION 1.03		Terms Generally			6074
SECTION 1.04		Accounting Terms; GAAP			6074
SECTION 1.05		Time Reference			6074
SECTION 1.06		Limited Condition AcquisitionsTransactions			6074
SECTION 1.07		Resolution of Drafting Ambiguities			6176
SECTION 1.08		German Terms			6276
SECTION 1.09		Calculations			76
SECTION 1.10		Agents			77
SECTION 1.11		Revolver Payment Priority Principles			78
ARTICLE II		THE CREDITS			6279
SECTION 2.01		Commitments			6279
SECTION 2.02		[Reserved]Letters of Credit			6380
SECTION 2.03		Borrowing Procedure			6387
SECTION 2.04		Evidence of Debt; Repayment of Loans			6488
SECTION 2.05		Fees			6489
SECTION 2.06		Interest on Loans			6590
SECTION 2.07		Termination and Reduction of Commitments			6792
SECTION 2.08		Scheduled Repayment of Loans			6893
SECTION 2.09		Prepayments of Loans			7096
SECTION 2.10		Alternate Rate of Interest			73100
SECTION 2.11		Yield Protection			75101
SECTION 2.12		Breakage Payments.			76102
SECTION 2.13		Payments Generally; Pro Rata Treatment; Sharing of Setoffs			76103
SECTION 2.14		Taxes			78105
SECTION 2.15		Mitigation Obligations; Replacement of Lenders			81107
SECTION 2.16		Extended Term Loans Extension Amendments			82109
SECTION 2.17		Incremental Credit Extensions			84111
SECTION 2.18		Defaulting Lenders			116
ARTICLE III		REPRESENTATIONS AND WARRANTIES			88119
SECTION 3.01		Organization; Powers			88119
SECTION 3.02		Authorization; Enforceability			88119
SECTION 3.03		No Conflicts			89119
SECTION 3.04		Financial Statements; Projections			89119
SECTION 3.05		Properties			90120
SECTION 3.06		Intellectual Property			90121
SECTION 3.07		Equity Interests and Subsidiaries			91121
SECTION 3.08		Litigation; Compliance with Laws			91122
SECTION 3.09		Federal Reserve Regulations			92122

 

-ii-

SECTION 3.10		Investment Company Act			92122
SECTION 3.11		Use of Proceeds			92122
SECTION 3.12		Taxes			92123
SECTION 3.13		No Material Misstatements			93123
SECTION 3.14		Labor Matters			93123
SECTION 3.15		Solvency			93124
SECTION 3.16		Employee Benefit Plans			93124
SECTION 3.17		Environmental Matters			94124
SECTION 3.18		Insurance			95125
SECTION 3.19		Security Documents			95125
SECTION 3.20		USA PATRIOT Act and Sanctions			95126
SECTION 3.21		Anti-Corruption Laws			96126
ARTICLE IV		CONDITIONS TO CLOSING			96126
SECTION 4.01		Conditions to Closing			96126
SECTION 4.02		Conditions to each Delayed Draw Term Loan Funding Date			100129
SECTION 4.03		Conditions to each Revolving Credit LoanExtensions			102131
ARTICLE V		AFFIRMATIVE COVENANTS			102132
SECTION 5.01		Financial Statements, Reports, etc			102132
SECTION 5.02		Litigation and Other Notices			104135
SECTION 5.03		Existence; Properties and Intellectual Properties			105136
SECTION 5.04		Insurance			106137
SECTION 5.05		Taxes			107138
SECTION 5.06		Employee Benefits			107138
SECTION 5.07		Maintaining Records; Access to Properties and Inspections			107138
SECTION 5.08		Use of Proceeds			107138
SECTION 5.09		Compliance with Environmental Laws			108138
SECTION 5.10		Additional Collateral; Additional Guarantors			108139
SECTION 5.11		Security Interests; Further Assurances			110140
SECTION 5.12		Information Regarding Collateral			110141
SECTION 5.13		Compliance with Law; Regulations; Etc			110141
SECTION 5.14		Cash Management [Reserved]			110141
SECTION 5.15		Post-Closing Matters			111141
SECTION 5.16		Permitted Revolving Credit Facility; Structure Changes [Reserved]			111142
SECTION 5.17		Post-Schroth Acquisition Requirements Regarding the Schroth German Subsidiaries			111142
ARTICLE VI		NEGATIVE COVENANTS			112142
SECTION 6.01		Indebtedness			112143
SECTION 6.02		Liens			114146
SECTION 6.03		Restrictions on Fundamental Changes			117149
SECTION 6.04		Disposal of Assets			118149
SECTION 6.05		Nature of Business			118150

 

-iii-

SECTION 6.06		Amendments			118150
SECTION 6.07		Restricted Payments; Investments			118151
SECTION 6.08		Limitation on Certain Restrictive Agreements			121153
SECTION 6.09		Financial Covenants			122155
SECTION 6.10		Change in Fiscal Year			123155
SECTION 6.11		Transactions with Affiliates			123155
SECTION 6.12		Holdings			124157
SECTION 6.13		Compliance with Anti-Terrorism Laws; Anti-Corruption Laws; OFAC			124157
ARTICLE VII		GUARANTEE			125158
SECTION 7.01		The Guarantee			125158
SECTION 7.02		Obligations Unconditional			126159
SECTION 7.03		Reinstatement			128160
SECTION 7.04		Subrogation; Subordination			128160
SECTION 7.05		Remedies			128160
SECTION 7.06		[Reserved]			128161
SECTION 7.07		Continuing Guarantee			128161
SECTION 7.08		General Limitation on Guarantee Obligations			128161
SECTION 7.09		Release of Guarantors			128161
SECTION 7.10		Keepwell			129161
SECTION 7.11		Right of Contribution			129161
SECTION 7.12		German Guarantee Limitation			129162
ARTICLE VIII		EVENTS OF DEFAULT			133165
SECTION 8.01		Events of Default			133165
SECTION 8.02		Rescission			135168
SECTION 8.03		Application of Proceeds			136168
SECTION 8.04		Right to Cure			136170
ARTICLE IX		THE REVOLVING ADMINISTRATIVE AGENT, ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT			137172
SECTION 9.01		Appointment and Authority			137172
SECTION 9.02		Rights as a Lender or the Issuing Bank			138173
SECTION 9.03		Exculpatory Provisions			139173
SECTION 9.04		Reliance by Agent			140174
SECTION 9.05		Delegation of Duties			140175
SECTION 9.06		Replacement or Resignation of Agent			140175
SECTION 9.07		Non-Reliance on Agent and Other Lenders			141176
SECTION 9.08		No Reliance on Administrative Agent’s Customer Identification Program			142176
SECTION 9.09		Withholding Tax			142177
SECTION 9.10		Enforcement			142177
SECTION 9.11		Collateral Matters			143178
SECTION 9.12		Agency for Perfection			144179
SECTION 9.13		The Lender Representative [Reserved]			144179
SECTION 9.14		Collateral Agent May File Proofs of Claim			144179

 

-iv-

SECTION 9.15		Knowledge			145180
SECTION 9.16		Reliance			145180
SECTION 9.17		Parallel Debt			180
SECTION 9.18		Intercreditor Agreements			181
SECTION 9.19		Erroneous Payments			182
ARTICLE X		MISCELLANEOUS			147184
SECTION 10.01		Notices			147184
SECTION 10.02		Waivers; Amendment			149186
SECTION 10.03		Expenses; Indemnity; Damage Waiver			151189
SECTION 10.04		Successors and Assigns			153191
SECTION 10.05		Survival of Agreement			157196
SECTION 10.06		Counterparts; Integration; Effectiveness; Electronic Execution			157196
SECTION 10.07		Severability			158196
SECTION 10.08		Right of Setoff			158196
SECTION 10.09		Governing Law; Jurisdiction; Consent to Service of Process			158197
SECTION 10.10		Waiver of Jury Trial			159197
SECTION 10.11		Headings			159198
SECTION 10.12		Treatment of Certain Information; Confidentiality			159198
SECTION 10.13		USA PATRIOT Act Notice and Customer Verification			160199
SECTION 10.14		Interest Rate Limitation			160199
SECTION 10.15		Requirement for Further Actions			160199
SECTION 10.16		Acknowledgement and Consent to Bail-In of Affected Financial Institutions			199
SECTION 10.17		Acknowledgement Regarding Any Supported QFCs			200

 

-v-

ANNEXES
Annex I		Applicable Loan Margin
SCHEDULES
Schedule 1.01(a)		Subsidiary Guarantors
Schedule 2.01		Lender Commitments
Schedule 3.05		Real Property
Schedule 3.06(b)		Intellectual Property - Registrations
Schedule 3.06(c)		Intellectual Property - No Violations or Proceedings
Schedule 3.07(a)		Equity Interests
Schedule 3.07(b)		Organizational Chart
Schedule 3.17		Environmental Matters
Schedule 3.18		Insurance
Schedule 3.19		Filing Offices
Schedule 5.15		Post-Closing Matters
Schedule 5.17		Post-Schroth Acquisition Requirements Regarding the Schroth German Subsidiaries
Schedule 6.01(b)		Existing Indebtedness
Schedule 6.02(c)		Existing Liens
Schedule 6.07(a)		Existing Investments
Schedule 6.11		Affiliate Transactions
EXHIBITS
Exhibit A		Form of Assignment and Assumption
Exhibit B		Form of Borrowing Request
Exhibit C		Form of Compliance Certificate
Exhibit D		Form of Interest Election Request
Exhibit E		Form of Joinder Agreement
Exhibit F		Form of Note
Exhibit G-1		Form of Perfection Certificate
Exhibit G-2		Form of Perfection Certificate Supplement
Exhibit H		Form of U.S. Tax Compliance Certificate
Exhibit I		Form of Solvency Certificate
Exhibit J		Agreed Security Principles
Exhibit K		Form of LC Request

 

-vi-

CREDIT AGREEMENT

CREDIT AGREEMENT (this “Agreement”) dated as of October 2, 2017 among LOAR MERGER SUB, INC., a Delaware corporation (the “Initial Borrower”) (to be merged with and into LOAR GROUP INC., a Delaware corporation (“Loar Group”), pursuant to the Closing Date Merger (such term and each other capitalized term used but not defined herein or in the Recitals below having the meaning given to it in Article I), with Loar Group as the survivor of such Closing Date Merger; the Initial Borrower or Loar Group, as applicable, in its capacity as the borrower hereunder being referred to herein as the “Borrower”), LOAR HOLDINGS, LLCINC., a Delaware limited liability companycorporation and the direct parent of the Borrower (“Holdings”), the other Guarantors party hereto from time to time, the Lenderslending institutions party hereto from time to time, and as lenders (the “Lenders”), FIRST EAGLE ALTERNATIVE CREDIT, LLC (as successor by merger to FIRST EAGLE PRIVATE CREDIT, LLC (f/k/a NEWSTAR FINANCIAL, INC.), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and as collateral agent for the Secured Parties (in such capacity, the “Collateral Agent”) and CITIBANK, N.A. (“Citibank”), as administrative agent for the Revolving Lenders (in such capacity, the “Revolving Administrative Agent”) and as an Issuing Bank.

WITNESSETH:

WHEREAS, the Closing Date Investors intend to acquireacquired indirectly all of the issued and outstanding Equity Interests of each of Loar Group and Xpedition Holdings, Inc., a Delaware corporation (“Xpedition” and, together with Loar Group, the “Loar Target”), pursuant to the Stock Purchase Agreement and Agreement and Plan of Merger, dated as of September 8, 2017 (the “Loar Acquisition Agreement”), among the Initial Borrower, Holdings, Loar Group and the Seller;

WHEREAS, pursuant to the Loar Acquisition Agreement, prior to the Closing Date, (a) the Seller and its direct and indirect parents will distributedistributed shares of capital stock of Loar Group (the “Distributed Shares”) to the Rollover Investors, (b) the Rollover Investors will contributecontributed the Distributed Shares to Parent in exchange for equity interests of Parent and (c) Parent will contributecontributed the Distributed Shares to Holdings (the “Contribution”);

WHEREAS, pursuant to the Loar Acquisition Agreement, Holdings will acquireacquired (together with the Contribution, the “Loar Acquisition”) all of the issued and outstanding Equity Interests of the Loar Target that are not Distributed Shares by (a) the merger (the “Closing Date Merger”) of the Initial Borrower with and into Loar Group with Loar Group as the surviving person and (b) the acquisition by Holdings of the issued and outstanding Equity Interests of Xpedition;

WHEREAS, to fund, in part, the Loar Acquisition, the Closing Date Investors will provideprovided an equity investment (the “Equity Contribution”) in Holdings or its direct or indirect parent company of at least 50% of an amount equal to the sum of (a) the Equity Contribution and (b) the aggregate principal amount of the Initial Term Loans incurred on the Closing Date, with all of such equity investment to be made in cash in exchange for common Equity Interests (or, solely in the case of the Rollover Investors, rollover into common Equity Interests), the cash proceeds of which shall bewere applied to consummate the Transactions or, to the extent not so applied, contributed to the Borrower in cash in respect of common Equity Interests;

WHEREAS, to also fund, in part, the Loar Acquisition and for the other purposes set forth in Section 3.11, the Borrower has requested the Lenders to extend credit to the Borrower, in each case on the Closing Date, in the form of (a) Initial Term Loans on the Closing Date in an aggregate principal amount of $160,000,000, (b) Delayed Draw Term Loan Commitments in an aggregate principal amount of $40,000,000, and (c) Revolving Credit Commitments in an aggregate principal amount of $20,000,000; and

 

1

WHEREAS, (a) the Borrower has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a Lien on substantially all of its assets pursuant to the Security Documents (subject to exceptions noted herein and therein) and (b) the Guarantors have agreed to guarantee the Obligations of the Borrower hereunder and to secure their respective Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a Lien on substantially all of their respective assets pursuant to the Security Documents (subject to exceptions noted herein and therein).

NOW, THEREFORE, on the basis of the foregoing and the mutual covenants and other agreements set forth herein, the Lenders are willing to extend such credit to the Borrower and each Issuing Bank is willing to issue letters of credit for the account of the Borrower and its Subsidiaries, in each case, on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

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

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

“Acceptable Intercreditor Agreement” means an intercreditor agreement, the terms of which are reasonably satisfactory to the Collateral Agent and the Borrower; provided, however, that no intercreditor agreement shall be an Acceptable Intercreditor Agreement unless the terms thereof satisfy the Revolver Payment Priority Principles.

“Account” shall mean an account (as that term is defined in the UCC).

“Acquired EBITDA” shall mean, with respect to any Acquired Entity or Business for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business (determined as if references to Holdings and the Subsidiaries in the definition of “Consolidated EBITDA” were references to such Acquired Entity or Business and its Subsidiaries), all as determined on a consolidated basis for such Acquired Entity or Business.

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

“Acquisition” shall mean any transaction or series of related transactions, consummated on or after the Closing Date, by which the Borrower directly, or indirectly through one or more Subsidiaries, (a) acquires any business, division thereof or line of business, or all or substantially all of the assets, of any person, whether through purchase of assets, merger or otherwise, or (b) acquires Equity Interests of any person having at least a majority of the ordinary voting power of the then outstanding Equity Interests of such person (any such business, division, line of business, assets or person so acquired, a “Target”).

“Additional Lenders” shall have the meaning assigned to such term in Section 2.17(ab).

“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that, in no event shall Adjusted Term SOFR be less than the Floor.

 

2

“Administrative Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor thereof pursuant to Article IX.

“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form provided by the Administrative Agent.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, however, that for purposes of Section 6.11, the term “Affiliate” shall also include (a) any person that directly or indirectly owns more than 10% of any class of Equity Interests of the person specified and (b) any person that is an executive officer or director of the person specified. Notwithstanding the foregoing, in no event shall Blackstone, any Blackstone Designees or any Affiliate of Blackstone or of any Blackstone Designee constitute an Affiliate of Holdings and its Subsidiaries for purposes of this Agreement and the other Loan Documents.

“Affiliated Lender” shall mean a Lender that is a Closing Date Investor pursuant to any of clauses (a), (b), (c) or (d) of the definition thereof, or any Affiliate of the foregoing. In no event shall Blackstone, any Blackstone Designees or any Affiliate of Blackstone or any Blackstone Designee constitute an Affiliated Lender for purposes of this Agreement and the other Loan Documents.

“Affiliate Transaction” shall have the meaning assigned to such term in Section 6.11(a).

“Agency Fee Letter” shall mean that certain Fee Letter, dated as of even date herewith, by and between the Borrower and Agents, the Administrative Agent and the Collateral Agent.

“Agents” shall mean the Revolving Administrative Agent, the Administrative Agent and the Collateral Agent; and “Agent” shall mean either of them, in each case, as the context may require.

“Aggregate Commitments” shall mean the Commitments of all the Lenders.

“Agreement” shall have the meaning assigned to such term in the preamble hereto.

“Agreed Security Principles” shall mean the security principles set forth on Exhibit J.

“All-In Yield” shall mean, with respect to any Indebtedness, the effective yield on such Indebtedness determined in a manner consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below), or similar devices and upfront or similar fees or original issue discount (amortized over the shorter of (i) the remaining weighted average life to maturity of such Indebtedness and (ii) the four years following the date of incurrence thereof) payable generally to Lenders or other institutions providing such Indebtedness, but excluding any arrangement, underwriting, structuring, ticking, commitment or other fees payable in connection therewith that are not generally shared with the relevant lenders providing such Indebtedness and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided that with respect to any Indebtedness that includes an interest rate floor, (a) to the extent that Adjusted Term SOFR (with an Interest Period of three months) (without giving effect to any floors in such definitions) on the date that the All-In Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the All-In Yield, and (b) to the extent that Adjusted Term SOFR (with an Interest Period of three months) (without giving effect to any floors in such definitions) on the date that the All-In Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the All-In Yield.

 

3

“Alternate Base Rate” shall mean, for any day, a fluctuating rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day, plus 0.50% and (c) Adjusted Term SOFR (calculated, for the avoidance of doubt, giving effect to the proviso set forth in the definition thereof) for an Interest Period of one (1) month commencing on such day, plus 1.00%, in each instance, as of such date of determination. If the Revolving Administrative Agent or Administrative Agent, as applicable, shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrativesuch Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in the Base Rate or the Federal Funds Effective Rate, respectively.

“Anti-Corruption Laws” shall mean any and all Requirements of Law concerning or relating to bribery or corruption applicable to Holdings or its Subsidiaries by virtue of such Person being organized or operating in any applicable jurisdiction.

“Anti-Terrorism Laws” shall mean any and all Requirements of Law related to terrorism financing or money laundering issued or promulgated by a Governmental Authority that are applicable to Holdings or its Subsidiaries by virtue of such Person being organized or operating in the applicable jurisdiction of such Governmental Authority, including OFAC and the Trading with the Enemy Act.

“Applicable Loan Margin” shall mean, foras of any day, the applicable percentage set forth in Annex I under the appropriate caption.:

(I) with respect to Initial Term Loans and Delayed Draw Term Loans, (a) until delivery of a Compliance Certificate with respect to the first full fiscal quarter ending after the Fifteenth Amendment Effective Date pursuant to Section 5.01(d), (i) 4.75% per annum for Term SOFR Loans and (ii) 3.75% per annum for ABR Loans and (b) thereafter, the following percentages per annum, based upon the Total Net Leverage Ratio as specified in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.01(d):

 

		Pricing Level		Total Net Leverage Ratio		Term SOFR Loans		ABR Loans
		1		> 6.25:1.00		5.25%		4.25%
		2		< 6.25:1.00 and > 5.50:1.00		5.00%		4.00%
		3		< 5.50:1.00		4.75%		3.75%

(II) with respect to Revolving Credit Loans and unused Revolving Credit Commitments under the Revolving Facility and Letter of Credit fees, 2.75% per annum for Term SOFR Loans and Letter of Credit fees, (ii) 1.75% per annum for Base Rate Loans and (iii) 0.375% per annum for the Commitment Fee Rate for unused Revolving Credit Commitments.

 

4

Any increase or decrease in the Applicable Loan Margin resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.01(d)); provided that, in the case of clause (I) above, “Pricing Level 1” (as set forth above) shall automatically apply to the applicable Class as of (x) the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) or (y) the first Business Day after an Event of Default under Section 8.01(a) or (b) shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply); provided, however, that notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Loan Margin for any period shall be subject to Section 2.06(f).

Notwithstanding the foregoing, (x) the Applicable Loan Margin in respect of any Class of (I) Extended Revolving Credit Loans and Extended Revolving Credit Commitments or (II) Extended Term Loans, in each case, established pursuant to an Extension Amendment, shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (y) the Applicable Loan Margin in respect of any Class of Incremental Term Loans or any Class of Incremental Revolving Credit Commitments (and the Incremental Revolving Credit Loans in respect thereof) shall be the applicable percentages per annum set forth in the relevant Incremental Amendment and (z) in the case of the Initial Term Loans and the Delayed Draw Term Loans, the Applicable Loan Margin shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.17(d)(i)(E).

“Approved Fund” shall mean, with respect to any Lender, any person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person)) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is managed, administered, advised or sub-advised by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers or manages such Lender.

“Asset Sale” shall mean any conveyance, sale, lease, sublease, assignment, transfer or other disposition (including by way of merger or consolidation and including any Sale and Leaseback Transaction) of any property, excluding (a) sales of inventory and dispositions of cash and Cash Equivalents, in each case, in the ordinary course of business, by Holdings or any of its Subsidiaries and in a manner not otherwise prohibited hereunder; (b) fundamental changes permitted by Section 6.03(a), (b) and (d)(ii); (c) dispositions of obsolete, worn out or permanently retired assets or the disposition in the ordinary course of business of assets no longer used or useful in the conduct of the Companies’ business; (d) Equity Issuances by Holdings; (e) any conveyance, sale, lease, sublease, assignment, transfer, or other disposition by (i) any Loan Party to any other Loan Party or (ii) any Subsidiary that is not a Loan Party to any Loan Party or any other Subsidiary that is not a Loan Party; (f) any trade-in of an asset in the ordinary course of business, or sale or other disposition of property to the extent exchanged for credit against the purchase price of similar replacement property or the proceeds of such sale or disposition are promptly applied to the purchase price of similar replacement property; (g) the incurrence of Permitted Liens, (h) the making of Permitted Investments; (i) the making of Restricted Payments permitted hereunder; (j) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for other property used or useful in the conduct of the Companies’ business; (k) (i) the lease, assignment or sublease, license or sublicense of any real or personal property in the ordinary course of business and (ii) the exercise of termination rights with respect to any lease, sublease, license or sublicense or other agreement in the ordinary course of business; (l) improvements made to leased real property disposed of to landlords pursuant to customary terms of leases entered into in the ordinary course of business; (m) any disposition of Receivables Assets in connection with any Receivables Facility permitted hereunder; (n) the conversion of accounts receivable to notes receivable or other dispositions of accounts

 

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receivable in the ordinary course of business in connection with the collection thereof; (o) the unwinding of any Hedging Obligations; and (p) the intentional lapse or abandonment of intellectual property rights in the ordinary course of business or consistent with past practice, which in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of Holdings and its Subsidiaries taken as a whole.; and (q) any other conveyance, sale, lease, sublease, assignment, transfer or other disposition for an aggregate fair market value not to exceed the greater of (I) $12.0 million and (II) 10.0% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period per fiscal year.

“Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an assignee in substantially the form of Exhibit A or such other form as may be reasonably acceptable to the Administrativeapplicable Agent, in each case, that is provided to the Administrativeapplicable Agent.

“Auction” shall have the meaning assigned to such term in Section 10.04(f)(ii).

“Auction Manager” shall mean (a) the Administrative Agent or (b) any other financial institution or advisor engaged by the Borrower (whether or not an Affiliate of the Administrative Agent), reasonably acceptable to the Lender RepresentativeAdministrative Agent (acting at the direction of the Required Lenders), to act as an arranger in connection with any Auction pursuant to Section 10.04(f)(ii); provided, that the Administrative Agent shall not be designated as the Auction Manager without the written consent of the Administrative Agent (it being understood and agreed that the Administrative Agent shall be under no obligation to agree to act as the Auction Manager); provided, further, that none of Holdings or its Subsidiaries or Affiliates or any Affiliated Lender may act as the Auction Manager.

“Auditors’ Determination” shall have the meaning assigned to such term in Section 7.12(b)(vi)(F).

“Auto-Renewal Letter of Credit” shall have the meaning assigned to such term in Section 2.02(c)(ii).

“Available Incremental Amount” shall mean, at any time from and after the Fifteenth Amendment Effective Date, the sum of (A) the greater of $116,000,000 and 100% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis) (the “Incremental Starter Basket”), plus (B) the aggregate amount of all voluntary prepayments and repurchases of the Initial Term Loans, other Term Loans, Incremental Equivalent Debt and any other Indebtedness, in each case, to the extent (x) incurred in reliance on clause (A) above or this clause (B) or (y) secured on a pari passu basis with the Initial Term Loans (including, in each case, repurchases at or below par), in each case, in the principal amount of indebtedness prepaid or repurchased, and voluntary reductions of Revolving Credit Commitments, Incremental Revolving Credit Commitments and Incremental Equivalent Debt in the form of revolving credit commitments, in each case, to the extent (x) incurred in reliance on clause (A) above or this clause (B) or (y) secured on a pari passu basis with the Initial Term Loans and, in each case, made prior to the date of any such incurrence; provided that the relevant prepayment or assignment and purchase is not funded with long-term indebtedness (other than revolving indebtedness) (the “Prepayment Basket”) plus (C) an unlimited amount (the “Ratio-Based Incremental Basket”) so long as, on a Pro Forma Basis determined on the basis of the financial statements most recently required to be delivered to the Administrative Agent pursuant to Section 5.01(a) or (b), as the case may be (and assuming in the case of any Incremental Revolving Credit Commitment that is then being established, that any such Incremental Revolving Credit Commitments are drawn in full) and after giving effect to the use of proceeds thereof, (1) in the case of Incremental Revolving Credit Commitments and Incremental Term Loan Commitments secured on a pari passu or junior lien basis with the Term Loans,

 

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the Total Net Leverage Ratio shall not exceed 5.50:1.00 and (2) in the case of Incremental Revolving Credit Commitments and Incremental Term Loan Commitments that are unsecured, the Total Net Leverage Ratio shall not exceed 6.50:1.00 (provided that to the extent the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Transaction, the Total Net Leverage Ratio shall be tested as of the applicable Limited Conditionality Test Date), plus (D) in each case without duplication of the replaced or refinanced Loan or terminated Commitment (1) in the case of an Incremental Facility that serves to effectively extend the maturity of any Term Loans (or the Revolving Credit Loans and/or Revolving Credit Commitments) that are secured on a pari passu basis with the Initial Term Loans (or Revolving Loans), an amount equal to the portion of such Term Loans (or Revolving Credit Loans and/or Revolving Credit Commitments) to be concurrently replaced with such Incremental Facility and (2) in the case of any Incremental Facility that effectively replaces any Revolving Credit Commitment terminated pursuant to Section 2.15, an amount equal to the portion of the relevant Revolving Credit Commitments being concurrently terminated plus (E) the amount of Incremental Revolving Credit Commitments established on the Fifteenth Amendment Effective Date in a committed amount of $50,000,000 plus (F) $100,000,000 to establish Delayed Draw Term Loan Commitments on the Fifteenth Amendment Effective Date; provided, that, (w) the Borrower shall not be required to comply with the applicable Total Net Leverage Ratio in connection with the establishment of any Incremental Facility in the form of a delayed draw term loan facility under the Ratio-Based Incremental Basket as long as compliance with such Total Net Leverage Ratio, as applicable, is required in connection with any borrowing thereunder, (x) any Incremental Facility may be incurred under the Ratio-Based Incremental Basket regardless of whether there is capacity under the Incremental Starter Basket or the Prepayment Basket, (y) any substantially concurrent utilization of the Incremental Starter Basket or the Prepayment Basket (or any Revolving Credit Loans) shall be disregarded in calculating the Total Net Leverage Ratio for purposes of the Ratio-Based Incremental Basket and (z) any portion of any Incremental Facilities incurred in reliance on clause (A) or (B) shall automatically be reclassified as incurred under clause (C) at any time the Borrower satisfies the applicable Total Net Leverage Ratio under clause (C) on a Pro Forma Basis.

“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.10(f) or (y) if the then current Benchmark is not a term rate nor based on a term rate, any payment period for interest calculated with reference to such Benchmark pursuant to this Agreement as of such date.

“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

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“Base Rate” shall mean, for any day, a rate per annum equal to the(x) in the case of the Revolving Credit Loans, the rate of interest in effect for such day as announced from time to time by the Revolving Administrative Agent as its “prime rate” and (y) in the case of any Term Loans, the rate last quoted by The Wall Street Journal as the “base rate on corporate loans posted by at least 70% of the nation’s largest banks” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent (which determination shall be conclusive absent manifest error)) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent (which determination shall be conclusive absent manifest error)). Any change in the Base Rate due to a change in any of the foregoing shall be effective on the effective date of such change in the base rate for corporate loans or the “bank prime loan” rate, as the case may be.

“Base Rate Term SOFR Determination Day” has the meaning set forth in the definition of “Term SOFR”.

“Basket” means any amount, threshold, exception or value (including by reference to the First Lien Net Leverage Ratio, Total Net Leverage Ratio, Consolidated EBITDA or Consolidated Total Assets) permitted or prescribed with respect to any Lien, Indebtedness, Asset Sale, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Loan Document.

“Benchmark” shall mean initially, Term SOFR Reference Rate; provided that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.10(b) or (c).

“Benchmark Replacement” shall mean, with respect to any Benchmark Transition Event or an Early Opt-in Election, as applicable, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent (at the direction of the Lender RepresentativeRequired Lenders) and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that in no event shall Benchmark Replacement be less than the Floor.

“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent (at the direction of the Lender RepresentativeRequired Lenders) and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities.

 

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

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);

(2) in the case of clause (3) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date; or

(3) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the regulatory supervisor for the administrator of such Benchmark (or such component), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will not be, representative.

 

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For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” shall mean the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.10 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.10.

“Blackstone” shall mean Blackstone Alternative Credit Advisors LP.

“Blackstone Designees” shall mean (a) Blackstone Holdings Finance Co. LLC and (b) any fund or account managed, advised, or sub-advised by Blackstone or its Affiliates.

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

“Board of Directors” shall mean, with respect to any person, (a) in the case of any corporation, the board of directors of such person, (b) in the case of any limited liability company, the board of managers, board of directors, sole member or managing member, as applicable, of such person, (c) in the case of any partnership, the board of directors (or equivalent governing body) of the general partner of such person, and (d) in any other case, the functional equivalent of the foregoing.

“Borrower” shall have the meaning assigned to such term in the preamble hereto.

“Borrowing” shall mean a borrowing consisting of simultaneous Loans of the same Class and of the same Type and, in the case of Term SOFR Loans, having the same Interest Period.

“Borrowing Request” shall mean a request by the Borrower for a Borrowing of Loans in accordance with Section 2.03, substantially in the form of Exhibit B or such other form as is reasonably acceptable to the Administrativeapplicable Agent.

“Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in New York City are authorized or required by law to close; provided, however, that when used in connection with a Term SOFR Loan, the term “Business Day” shall be a day which is a U.S. Securities Business Day.

“Capital Expenditures” shall mean all expenditures which, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet of Holdings and its Subsidiaries, but excluding expenditures made in connection with the purchase, replacement, substitution or restoration of assets to the extent (a) financed from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored, (b) financed with cash awards of compensation arising from Casualty Events, (c) made as a tenant in leasehold improvements to the extent reimbursed by a landlord or reimbursed by a third party, (d) constituting a trade-in of an asset in the ordinary course of business to the extent no cash expenditure was made in connection therewith or (e) purchases of replacement property to the extent financed with a credit from the sale or other disposition of similar property or otherwise paid for with the proceeds of a sale or disposition of similar property that are promptly applied to such purchase price.

 

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“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a finance lease on the balance sheet of that Person (for the avoidance of doubt, subject to Section 1.04).

“Capital Lease Obligations” shall mean, at the obligations of any person under any lease of (or other arrangement conveying the right to use) property (real or personal) which obligations aretime any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be capitalized on theand reflected as a liability on a balance sheet of such person under GAAP; provided that all obligations of any person that are or would be characterized as operating lease obligations(excluding the footnotes thereto) prepared in accordance with GAAP on the Closing Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations (and not as(for the avoidance of doubt, subject to Section 1.04); provided that Capital Lease Obligations) for purposes of this Agreement regardless of any change in GAAP following the Closing Date that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as Capital shall, for the avoidance of doubt, exclude all Non-Finance Lease Obligations.

“Cash Equivalents” shall mean, as to any person, (a) (i) Dollars, (ii) Euros, Yen, Canadian Dollars, Sterling or any national currency of any participating member state of the EMU, and (iii) in the case of any Foreign Subsidiary or any jurisdiction in which the Borrower or any Subsidiary conducts business, such other local currencies held by it from time to time in the ordinary course of business; (b) securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition by such person; (c) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Service or Moody’s Investors Service Inc.; (d) time deposits, overnight bank deposits and certificates of deposit of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia having, capital and surplus aggregating in excess of $500,000,000 with maturities of not more than one year from the date of acquisition by such person; (e) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (b) above entered into with any bank meeting the qualifications specified in clause (d) above; (f) commercial paper issued by any person incorporated in the United States rated at least A-1 or the equivalent thereof by Standard & Poor’s Rating Service or at least P-1 or the equivalent thereof by Moody’s Investors Service Inc., and in each case maturing not more than one year after the date of acquisition by such person; (g) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (a) through (f) above; and (h) demand deposit accounts maintained in the ordinary course of business.

“Cash Liquidity” shall mean the sum of all unrestricted cash and Cash Equivalents of Holdings and its Subsidiaries.

“Cash Management Agreement” shall mean any agreement entered into from time to time by Holdings or any Subsidiary in connection with cash management services for collections, other Cash Management Services and for operating, payroll and trust accounts of such Person, including automatic clearing house services, controlled disbursement services, electronic funds transfer services, information reporting services, lockbox services, stop payment services and wire transfer services.

 

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“Cash Management Bank” shall mean any person that enters into a Cash Management Agreement with Holdings or any Subsidiary; provided that, in the case of any Secured Cash Management Agreement, if such person is not a Lender, (a) such person and the Secured Cash Management Agreement between such person and Holdings or its relevant Subsidiary are reasonably acceptable to the Lender RepresentativeAdministrative Agent and Collateral Agent (in each case, acting at the direction of the Required Lenders) and (b) such person executes and delivers to the Agents a letter agreement in form and substance reasonably acceptable to the Agents, the Lender RepresentativeAdministrative Agent and the Collateral Agent (in each case, acting at the direction of the Required Lenders) and the Borrower pursuant to which such person (i) appoints thesuch Agents as its agents under the applicable Loan Documents and (ii) agrees to be bound by the provisions of Article IX and Section 8.03 of this Agreement and corresponding or similar provisions in any Security Document, in each case, as if it were a Lender.

“Cash Management Obligations” shall mean obligations owed by Holdings or any Subsidiary to any Cash Management Bank in connection with, or in respect of, any Cash Management Services.

“Cash Management Services” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card e-payables services; (b) treasury management services (including controlled disbursement, overdraft, automatic clearing house fund transfer services, return items and interstate depository network services); (c) foreign exchange, netting and currency management services and (d) any other demand deposit or operating account relationships or other cash management services, including under any Cash Management Agreements.

“Casualty Event” shall mean any involuntary loss of title, any involuntary loss of, damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any equipment, fixed assets, or real property of Holdings or any of its Subsidiaries. “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of any person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Requirement of Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.

“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq., and all implementing regulations.

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

“CFC Holdco” shall mean a direct or indirect Subsidiary that (i) has no material assets other than the capital stock and, if applicable, indebtedness of one or more subsidiaries that are Foreign Subsidiaries that are CFCs or other CFC Holdcos or (ii) is treated as a disregarded entity for U.S. federal income tax purposes and owns capital stock of one or more Foreign Subsidiaries that are CFCs or other CFC Holdcos.

“Change in Control” shall be deemed to have occurred if:

(a) any Person (other than a Permitted Holder) or (2) Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act), but excluding any employee benefit plan of such Person or “group” and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of Voting

 

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Stock representing more than 35% of the aggregate voting power of the outstanding Voting Stock of Holdings and the percentage of aggregate voting power so held is greater than the percentage of the aggregate voting power represented by the Voting Stock of Holdings beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders, unless the Permitted Holders have, at such time, the right or the ability by voting power, contract, or otherwise to elect or designate for election at least a majority of the board of directors (or analogous governing body) of Holdings; or

(a) at any time a change of control (or similar event) occurs as defined in any agreement, document or instrument evidencing any Material Indebtedness;

(b) the Sponsor and its Controlled Investment Affiliates, together, directly or indirectly, (i) fail to have the power to vote or direct the voting of at least 37% of the issued and outstanding Voting Stock of Holdings; or (ii) fail to own at least 37% of the total economic interests of Holdings represented by the issued and outstanding Equity Interests of Holdings;

(c) the Permitted Holders, together, directly or indirectly, fail to possess the right to elect a majority of the Board of Directors of Holdings;

(b) (d) Holdings fails to directly legally own 100% of the outstanding Equity Interests of the Borrower; or .

Notwithstanding anything to the contrary in this definition or any provision of the Exchange Act, (A) if any group includes one or more Permitted Holders, the issued and outstanding Capital Stock of Holdings directly or indirectly owned by the Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of this definition, (B) a Person or group shall be deemed not to beneficially own securities subject to an equity or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the securities in connection with the transactions contemplated by such agreement and (C) a Person or group will be deemed not to beneficially own the Capital Stock of another Person as a result of its ownership of Capital Stock or other securities of such other Person’s parent (or related contractual rights) unless it owns 50% or more of the Voting Stock of such Person’s parent.

(e) the sale, assignment, transfer, lease, conveyance or other disposition, in a single transaction or a series of related transactions, of all or substantially all of the assets of Holdings and its Subsidiaries (taken as a whole).

“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or effectiveness of any law, treaty, order, policy, rule or regulation; (b) any change in any law, treaty, order, policy, rule or regulation or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities pursuant to Basel III, in each case, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Charges” shall have the meaning assigned to such term in Section 10.14.

“CIP Regulations” shall have the meaning assigned to such term in Section 9.08.

 

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“Class” shall mean, with respect to the Loans and Commitments hereunder, the nature of such Loans and Commitments as (a) Initial Term Loans and Initial Term Loan Commitments, (b) Delayed Draw Term Loans and Delayed Draw Term Loan Commitments, (c) Eleventh Amendment Incremental TermExtended Revolving Credit Loans and Eleventh Amendment Incremental Term LoanExtended Revolving Credit Commitments established pursuant to an Extension Amendment, (d) Incremental Term Loans and Incremental Term Loan Commitments, in each case, funded on the same date pursuant to the same terms and conditions, (e) Extended Term Loans established pursuant to the samean Extension Amendment or, (f) Revolving Credit Loans and Revolving Credit Commitments or (g) Incremental Revolving Credit Loans and Incremental Revolving Credit Commitments, in each case, funded on the same date pursuant to the same terms and conditions.

“Closing Date” shall mean the date on which the Initial Term Loans arewere funded pursuant to Section 2.01 hereunder.

“Closing Date Investors” shall mean (a) the Sponsor and its Controlled Investment Affiliates; (b) Dirkson Charles and Brett Milgrim; (c) Glenn D’Alessandro, Mike Manella, Jim Mullen, Debra Wick, Doris Harms, Jonathan Mark Green, James M. Graham and Timothy S. Rozema; (d) Great Point Ventures, LLC (an investment vehicle of Paul Levy) and (e) Blackstone and/or certain Blackstone Designees designated by Blackstone.

“Closing Date Material Adverse Effect” shall have the meaning assigned to “Material Adverse Effect” in the Loar Acquisition Agreement.

“Closing Date Merger” shall have the meaning assigned to such term in the third recital hereto.

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

“Collateral” shall mean, collectively, all of the Security Agreement Collateral, the Mortgaged Property and all other real and personal property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Security Document.

“Collateral Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor thereof pursuant to Article X.

“Commercial Tort Claims” shall have the meaning assigned to such term in the UCC.

“Commitment Fee” shall have the meaning assigned to such term in the Section 2.05(b).

“Commitments” shall mean Initial Term Loan Commitments, Delayed Draw Term Loan Commitments, Eleventh Amendment Incremental Term Loan Commitments, Incremental Term LoanRevolving Credit Commitments, Term Commitments or Revolving Credit Commitments, as the context may require.

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

“Communications” shall have the meaning assigned to such term in Section 10.01(b).

“Companies” shall mean Holdings and its Subsidiaries, including the Borrower; and “Company” shall mean any one of them.

 

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“Compliance Certificate” shall mean a certificate of a Financial Officer of Holdings, substantially in the form of Exhibit C or such other form as may be reasonably acceptable to the Lender RepresentativeAdministrative Agent (acting at the direction of the Required Lenders).

“Conforming Changes” shall mean, with respect to the use or administration of Adjusted Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters) that the Revolving Administrative Agent and the Administrative Agent, as applicable, decides, in consultation with the Borrower, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrativeapplicable Agent in a manner substantially consistent with market practice (or, if the Administrativeapplicable Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrativeapplicable Agent determines, in consultation with the Borrower, that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrativesuch Agent decides, in consultation with the Borrower, is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Consolidated Depreciation and Amortization Expense” shall mean, for any Test Period, all depreciation and amortization expense of Holdings and its Subsidiaries and amortization of capitalized software expenditures, all as determined for Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP.

“Consolidated EBITDA” shall mean, for any Test Period, Consolidated Net Income for such Test Period, plus (without duplication), in each case (other than in the case of clauses (i) and (s) below), to the extent deducted in the calculation of Consolidated Net Income for such Test Period:

(a) the sum of the amounts for such Test Period included in determining such Consolidated Net Income of (i) Consolidated Interest Expense, (ii) Consolidated Income Tax Expense, and (iii) Consolidated Depreciation and Amortization Expense;

(b) any non-cash charges or losses; provided, that any non-cash charges or losses shall be treated as cash charges or losses in any subsequent Test Period during which cash disbursements attributable thereto are made;

(c) any extraordinary, unusual, non-recurring or exceptional expenses, losses or charges, in an aggregate amount pursuant to this clause (c) not to exceed 10.0% of Consolidated EBITDA determined on a Pro Forma Basis in any Test Period (or, with respect to any Test Period, such higher amount as may be agreed to in writing by the Lender Representative);;

(d) reasonable and documented expenses paid to non-Affiliates (or, solely in the case of clauses (i)(x) and (iii) below, Affiliated Lenders in their capacities as Lenders hereunder) relating to (i) (x) the execution, delivery and performance of the Loan Documents and the borrowings of the Initial Term Loans hereunder or (y) the other Transactions, in each case, solely to the extent paid or accrued on or prior to December 31, 2017, (ii) any Permitted Revolving Credit Facility[reserved], (iii) refinancing transactions or amendments or other modifications of the Indebtedness under this Agreement (in each case, whether or not completed) or (iv) Permitted

 

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Acquisitions and, to the extent not prohibited hereunder, Investments, recapitalizations, dispositions, issuances or repayments of Indebtedness, issuances of Equity Interests (including, for the avoidance of doubt, the IPO), sale processes, refinancing transactions or amendments or other modifications of any Indebtedness (other than any such refinancing transactions or amendments or other modifications of Indebtedness to the extent covered by clause (iii) above) (in each case, whether or not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction in an aggregate amount pursuant to clauses (d)(iii) and (d)(iv) not to exceed 15.0% of Consolidated EBITDA determined on a Pro Forma Basis in any Test Period;

(e) any integration expenses, business optimization expenses, operating improvement expenses and other restructuring charges, accruals or reserves (including, for the avoidance of doubt, retention costs, severance costs, systems development and establishment costs, costs associated with office and facility openings, closings and consolidations, and relocation costs, conversion costs, excess pension charges, curtailments and modifications to pension and post-employment employee benefit plan costs or charges, contract termination costs, expenses attributable to the implementation of cost savings initiatives and professional and consulting fees incurred in connection with any of the foregoing) incurred during such Test Period, which costs and expenses are specified in reasonable detail in a certificate signed by a Financial Officer and delivered to the Administrative Agent and the Lender Representative, in an aggregate amount pursuant to this clause (e) not to exceed 10.0% of Consolidated EBITDA determined on a Pro Forma Basis in any Test Period;

(f) any losses incurred at “de novo” facilities, including certain non-capitalized start-up costs, which losses are directly associated with the opening of any such “de novo” facility and incurred within the twelve-month period following the opening of such “de novo” facility, in an aggregate amount pursuant to this clause (f) not to exceed $1,500,0007,500,000 in any Test Period;

(g) Board of Directors fees, indemnities and related expenses paid or reimbursed to the extent permitted to be paid or reimbursed in accordance with this Agreement;

(h) any costs and expenses incurred in connection with the Borrower or any Subsidiary making a borrowing pursuant to the Paycheck Protection Program;

(i) proceeds from business interruption insurance (to the extent not reflected as revenue or income in such statement of Consolidated Net Income);

(j) (i) any loss, expense or charge (including all reasonable fees and expenses or charges relating thereto) from abandoned, closed, disposed or discontinued operations and (ii) any losses on disposal of abandoned, closed or discontinued operations;

(k) any loss, expense or charge (including all reasonable fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions, other than in the ordinary course of business, as determined in good faith by a Financial Officer;

(l) any non-cash loss attributable to the mark-to-market movement in the valuation of hedging obligations (including hedging obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) or other derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133 “Accounting for Derivative Hedging Instruments”;

 

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(m) any costs or expenses incurred in connection with Restricted Payments made pursuant to Section 6.07(b)(i) or (viii);

(n) except to the extent such Subsidiary income has been paid or otherwise distributed in cash to the relevant third parties, minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Subsidiary deducted (and not added back in such period to Consolidated Net Income);

(o) all non-cash expenses resulting from any employee retention plan, employee benefit or management compensation plan or the grant of equity and equity options to employees of such Person or any of its Subsidiaries pursuant to a written plan or agreement (including expenses arising from the grant of equity and equity options prior to the Closing Date or relating to the implementation thereof) or the treatment of such options under variable plan accounting;

(p) any costs or expenses incurred pursuant to any management equity plan or share option plan or any other management or employee benefit plan or agreement or share subscription or shareholder agreement, to the extent such costs or expenses are funded with cash proceeds contributed to the common capital of such Person or the Net Cash Proceeds of any issuance of Equity Interests not constituting Disqualified Capital Stock;

(q) charges, losses, lost profits, expenses (including litigation expenses, fees and charges) or write-offs to the extent indemnified or insured by a third party, including expenses or losses covered by indemnification provisions or by any insurance provider in connection with the Transactions, a Permitted Acquisition or any other Investment, disposition or any Casualty Event, in each case, to the extent not prohibited hereunder and to the extent that coverage has not been denied and so long as such amounts are actually reimbursed in cash within twelve months after the related amount is first added to Consolidated EBITDA pursuant to this clause (r) (and if not so reimbursed within twelve months, such amount shall be deducted from Consolidated EBITDA during the next measurement period);

(r) cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period to the extent non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to clauses (tv) through (wy) below for any previous Test Period and not added back; and

(s) the amount of “run-rate” cost savings, synergies and operating expense reductions resulting from, or related to, mergers and other business combinations, acquisitions, investments, divestitures, dispositions, discontinuance of activities or operations or other Specified Transactions, restructurings, cost savings initiatives, operational changes and other similar initiatives (including, for the avoidance of doubt, acquisitions occurring prior to the Fifteenth Amendment Effective Date) that are reasonably identifiable and projected by the Borrower in good faith to result from actions either taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) within 24 months after such merger or other business combination, acquisition, investment, divestiture, disposition, discontinuance of activities or operations or other Specified Transaction, restructuring, cost savings initiative, operational change or other similar initiative is consummated (or undertaken or implemented prior to consummation of the acquisition or other applicable transaction (including any actions taken on or prior to the Fifteenth Amendment Effective Date)); provided that such “run-rate” cost savings, synergies and operating expense reductions added back pursuant to this clause (s) are net of the amount of actual benefits realized from such actions during such period (it is understood and agreed that “run-rate” means the full recurring benefit that is associated with any action taken or with

 

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respect to which substantial steps have been taken or are expected to be taken, whether prior to or following the Fifteenth Amendment Effective Date) (which adjustments may be incremental to (but not duplicative of) pro forma cost savings, synergies or operating expense reduction adjustments made pursuant to the definition of Pro Forma Basis); provided, further that the aggregate amount added back pursuant to this clause (s) in any Test Period, when aggregated with the amount of any increase for such period in Consolidated EBITDA as a result of any “run-rate” cost savings, synergies and operating expense reductions pursuant to the definition of “Pro Forma Basis” in such Test Period, shall not exceed 30.0% of Consolidated EBITDA of Holdings and its Subsidiaries for such Test Period (calculated after giving effect to amounts added back under this clause (s) and all other applicable addbacks);

(st) Public Company Costs; and

(u) adjustments, exclusions and add-backs consistent with Regulation S-X (as in effect immediately prior to giving effect to the amendments thereto that became effective on January 1, 2021) of the Securities and Exchange Commission (or any successor agency);

minus (without duplication), in each case, to the extent included in the calculation of Consolidated Net Income for such Test Period:

(tv) non-cash gains or income; provided that any non-cash gains or income shall be treated as cash gains or income in any subsequent Test Period during which cash receipts attributable thereto are received;

(uw) any extraordinary or non-recurring income or gain;

(vx) any gain (including all fees and expenses or income relating thereto) attributable to business dispositions or asset dispositions, other than in the ordinary course of business, as determined in good faith by a Financial Officer; and

(wy) (i) subject to the proviso in subclause (ii) of the succeeding paragraph, any gain or income (including all reasonable fees and expenses or charges relating thereto) from abandoned, closed, disposed or discontinued operations and (ii) any gains on disposal of abandoned, closed or discontinued operations;

in each case, as determined on a consolidated basis for Holdings and its Subsidiaries in accordance with GAAP; provided, however, that Consolidated EBITDA, subject to the succeeding paragraph, (a) for the fiscal quarter ended SeptemberJune 30, 20162023, shall be deemed to be $7,223,00029,492,000, (b) for the fiscal quarter ended December 31, 2016September 30, 2023, shall be deemed to be $7,452,00029,741,000, (c) for the fiscal quarter ended MarchDecember 31, 20172023, shall be deemed to be $8,415,00029,492,000, and (d) for the fiscal quarter ended June 30March 31, 20172024, shall be deemed to be $8,892,00033,030,000.

For the avoidance of doubt:

(i) there shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person or business, or attributable to any property or asset acquired by Holdings or any of its Subsidiaries during such period (but not the Acquired EBITDA of any related Person or business or any Acquired EBITDA attributable to any assets or property, in each case to the extent not so acquired) to the extent not subsequently sold, transferred, abandoned or otherwise disposed of by Holdings or such Subsidiary (each such Person,

 

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business, property or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Effect with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition); and

(ii) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period (A) the Disposed EBITDA of any Person, property, business or asset sold, transferred, abandoned or otherwise disposed of, closed or classified as discontinued operations (subject to the proviso of this clause (ii)) by Holdings or any Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Disposed Entity or Business”) based on the Disposed EBITDA of such Disposed Entity or Business for such period and (B) an adjustment in respect of each Disposed Entity or Business equal to the amount of the Pro Forma Effect with respect to such Disposed Entity or Business for such period (including the portion thereof occurring prior to such disposition); provided that, for the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business as discontinued operations as a result of the entry into a definitive agreement for the disposition thereof or as a result of constituting assets held for sale, the Disposed EBITDA of such Person or business shall not be excluded pursuant to this clause (ii) until such disposition has been consummated.

Unless the context otherwise requires, if no applicable Person is referenced, “Consolidated EBITDA” shall be deemed to refer to Consolidated EBITDA of Holdings and its Subsidiaries on a consolidated basis.

“Consolidated Income Tax Expense” shall mean, for any Test Period, all provisions for taxes based on the net income, profits or capital, including federal, provincial, territorial, foreign, state, local, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period (including in respect of repatriated funds and any penalties and interest related to such taxes), in each case, of Holdings or any of its Subsidiaries (including, without limitation, any additions to such taxes, and any penalties and interest with respect thereto), all as determined for Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP.

“Consolidated Indebtedness” shall mean, as at any date of determination, the aggregate amount, without duplication, of all funded Indebtedness pursuant to clauses (a), (b), (c), (d), (f) and (i) of the definition of “Indebtedness” (in the case of clause (i) of the definition of “Indebtedness”, solely to the extent of any unpaid reimbursement obligations in respect of any drawn letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions) of Holdings and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Expense” shall mean, with respect to Holdings and its Subsidiaries on a consolidated basis, for any Test Period, interest expense determined in accordance with GAAP, adjusted, (i) to the extent not included, to include, without duplication, (a) interest income; (b) interest expense attributable to Capital Lease Obligations; (c) gains and losses on hedging or other derivatives to hedge interest rate risk; (d) fees and costs related to letters of credit, bankers’ acceptance financing, surety bonds and similar financings and (e) amortization or write-off of deferred financing fees, debt issuance costs, debt discount or premium, terminated hedging obligations and other commissions, financing fees and expenses; and (ii) to the extent included, to exclude, without duplication, any refunds or similar credits received in connection with the purchasing or procurement of goods or services under any purchasing card or similar program.

 

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“Consolidated Net Income” shall mean, for any Test Period, the net income (or loss) of any Person on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, excluding without duplication:

(a) any net after-tax gains or losses (and all fees and expenses or charges relating thereto) attributable to the early extinguishment of Indebtedness or hedging obligations or other derivative instruments;

(b) (i) the net income of any Person that is not a Subsidiary of such Person, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referenced person or a subsidiary thereof in respect of such period and (ii) the net income shall include any ordinary course dividend distribution or other payment in cash received from any Person in excess of the amounts included in clause (b)(i); provided, however, that Holdings’ equity in net loss of any such Person for such period shall be included in determining Consolidated Net Income solely to the extent that Holdings or any other Subsidiary has funded such loss;

(c) solely for the purpose of determining clause (b) of the Cumulative Amount, the net income of any Subsidiary of Holdings that is not a Loan Party during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income (i) is not permitted by operation of the terms of its Organizational Documents or any agreement, instrument or Requirement of Law applicable to such Subsidiary during such period, or (ii) would result in material adverse tax consequences to Holdings and its Subsidiaries, taken as a whole; provided, however, that the net income excluded from Consolidated Net Income pursuant to clause (c)(ii) shall be limited to the amount of any Tax liability that would be incurred upon payment of such dividend or similar distribution;

(d) the cumulative effect of a change in accounting principles during such period to the extent included in net income;

(e) any increase in amortization or depreciation or any one-time non-cash charges or other effects resulting from purchase accounting (including in the inventory, property and equipment, software, goodwill, intangible assets, in process research and development, deferred revenue and debt line items) in connection with the Transactions, any acquisition or Investment consummated prior to or after the Closing Date;

(f) any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP, which, without limiting the foregoing, shall include any impairment charges resulting from the application of Financial Accounting Standards Board Statements No. 142 and 144, and the amortization of intangibles arising pursuant to No. 141;

(g) any non-cash expenses realized or resulting from employee benefit plans or post-employment benefit plans, grants of stock appreciation or similar rights, stock options, restricted stock grants or other rights to officers, directors and employees of such Person or any of its Subsidiaries;

(h) any unrealized gain or loss due solely to fluctuations in currency values and the related tax effects, determined in accordance with GAAP; and

 

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(i) earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof and purchase price adjustments, in each case in connection with Acquisitions consummated prior to the Closing Date and Permitted Acquisitions or, to the extent permitted hereunder, other Investments.

There shall be included in Consolidated Net Income, without duplication, the amount of any cash tax benefits related to the tax amortization of intangible assets in such period. Unless the context otherwise requires, if no applicable Person is referenced, “Consolidated Net Income” shall be deemed to refer to Consolidated Net Income of Holdings and its Subsidiaries on a consolidated basis.

“Consolidated Total Assets” shall mean, as of any date of determination, the consolidated total assets of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Specified Transaction, on a pro forma basis including any property or assets being acquired in connection therewith).

“Contingent Obligation” shall mean, as to any person, any obligation, agreement, understanding or arrangement of such person guaranteeing or intended to guarantee any Indebtedness or other obligations (“primary obligations”) of any other person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (d) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product warranties. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such person may be liable, whether singly or jointly, pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.

“Contract Consideration” shall have the meaning assigned to such term in the definition of “Excess Cash Flow”.

“Contribution” shall have the meaning assigned to such term in the second recital hereto.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Control Agreement” shall mean a control agreement or other similar agreement with the Collateral Agent and a Grantor (as defined in the Security Agreement), in form and substance reasonably satisfactory to the Lender Representative and the Collateral Agent in order to give the Collateral Agent “control” (within the meaning set forth in Section 9-104 of the UCC) of such account.

“Controlled Investment Affiliate” shall mean, as to any person, any other person which directly or indirectly is in Control of, is Controlled by, or is under common Control with, such person and is organized by such person (or any person Controlling such person) primarily for making equity or debt investments in Holdings or other portfolio companies.

 

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“Corresponding Debt” shall have the meaning assigned to such term in Section 9.17(b).

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

“Credit Extension” shall mean, as the context may require, (i) the making of a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the amendment, extension or renewal of any existing Letter of Credit, by the Issuing Bank.

“Cumulative Amount” shall mean, on any date of determination (the “Reference Date”), the sum of (without duplication):

(c) the greater of (i) $50,000,000 and (ii) 40.0% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis); plus

(d) 100% of the amount of Excess Cash Flow of Holdings and its Subsidiaries, determined on a cumulative basis, for all fiscal years of Holdings ending after the Fifteenth Amendment Effective Date (commencing with the fiscal year ending December 31, 2024) that is not required to be applied in accordance with Section 2.09(b)(iv) (which amount shall not be less than zero for any fiscal year); plus

(e) the cumulative amount of cash and Cash Equivalent proceeds and the fair market value of marketable securities or other property received from (i) the sale of Equity Interests (other than any Disqualified Capital Stock) of Holdings or Equity Interests (other than any Disqualified Capital Stock) of any direct or indirect parent of Holdings, in each case, after the Fifteenth Amendment Effective Date and on or prior to such time (including upon exercise of warrants or options) (other than (x) any Cure Amount, (y) any other amount which has been (or is substantially concurrently being) applied to make Restricted Payments pursuant to Section 6.07(b)(x)) which proceeds have been contributed as common equity to the capital of the Borrower and (ii) the Equity Interests (other than any Disqualified Capital Stock) of Holdings (or Equity Interests (other than any Disqualified Capital Stock) of any direct or indirect parent of Holdings) (other than (x) any Cure Amount, (y) any other amount which has been (or is substantially concurrently being) applied to make Restricted Payments pursuant to Section 6.07(b)(x)) issued upon conversion of Indebtedness (other than Indebtedness that is contractually subordinated to the Obligations) of Holdings or any Subsidiary of Holdings owed to a Person other than a Loan Party or a Subsidiary of a Loan Party; plus

(f) an amount equal to the Declined Proceeds; plus

(g) to the extent not already reflected as a return of capital or deemed reduction in the amount of such Investment pursuant to the definition thereof or any provision of Section 6.07, the aggregate amount of all cash dividends and other cash distributions received by any Company from any Investment made with the Cumulative Amount during the period from the Business Day immediately following the Fifteenth Amendment Effective Date through and including the Reference Date; provided that any such amount shall not exceed the amount of the Investment originally made with the Cumulative Amount; plus

(h) to the extent not already reflected as a return of capital or deemed reduction in the amount of such Investment pursuant to the definition thereof or any provision of Section 6.07, the aggregate amount of all Net Cash Proceeds received by any Company in connection with the sale, transfer or other disposition of its ownership interest in any Investment made with the Cumulative Amount during the period from the Business Day immediately following the Fifteenth Amendment Effective Date through and including the Reference Date; provided that any such amount shall not exceed the amount of the Investment originally made with the Cumulative Amount; minus

 

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(i) (i) the aggregate amount of Investments made pursuant to clause (r) of the definition of “Permitted Investment” using the Cumulative Amount and (ii) the aggregate amount of Restricted Payments made pursuant to Section 6.07(b)(xii) using the Cumulative Amount, in each case during the period from and including the Business Day immediately following the Fifteenth Amendment Effective Date through and including the Reference Date (without taking account of the intended usage of the Cumulative Amount on such Reference Date).

“Cure Amount” shall have the meaning assigned to such term in Section 8.04.

“Cure Expiration Date” shall have the meaning assigned to such term in Section 8.04.

“Cure Quarter” shall have the meaning assigned to such term in Section 8.04.

“Covenant Suspension PeriodDDTL Fee Letter” shall mean the period commencing with the Sevenththat certain Fee Letter, dated as of the Fifteenth Amendment Effective Date through and including June 30, 2022, by and between the Borrower and Blackstone.

“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent (in consultation with the Lender Representative) in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent (in consultation with the Lender Representative) may establish another convention in its reasonable discretion.

“Daily Simple SOFR Adjustment” shall mean a percentage equal to one-tenth of one percent (0.10%) per annum.

“Debt Issuance” shall mean the Incurrence by Holdings or any of its Subsidiaries of Indebtedness on or after the Closing Date (other than asor the issuance of any Disqualified Capital Stock by the Borrower or any of its Subsidiaries after the Closing Date, in each case not permitted by Section 6.01).

“Declined Proceeds” shall have the meaning assigned to such term in Section 2.09(c).

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

“Default Excess” shall mean, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro Rata Percentage of the aggregate outstanding principal amount of Loans of all Revolving Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all of their respective defaulted Loans) over the aggregate outstanding principal amount of Revolving Credit Loans of such Defaulting Lender.

 

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“Defaulting Lender” shall mean any Lender, as reasonably determined by the applicable Agent in a manner consistent with similar determinations by the applicable Agent in respect of other Lenders, that (a) has failed to fund any portion of its Loans or participations in Letters of Credit required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, (b) has notified the applicable Agent, the Issuing Bank, any Lender and/or the Borrower in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it committed to extend credit, (c) has failed, within three (3) Business Days after request by the applicable Agent or the Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit, (d) has otherwise failed to pay over to the applicable Agent or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless such payment is the subject of a good faith dispute, or (e) in the case of a Lender that has a Commitment, or LC Exposure outstanding at such time, shall take, or is the Subsidiary of any Person that has taken, any action or be (or is) the subject of any action or proceeding of a type described in Section 8.01(g) or Section 8.01(h) (or any comparable proceeding initiated by a regulatory authority having jurisdiction over such Lender or such Person). For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority.

“Delayed Draw Term Loan” shall mean the loans made from time to time after the Closing Date on any Delayed Draw Term Loan Funding Date pursuant to Section 2.01(b).

“Delayed Draw Term Loan Commitment” shall mean, with respect to any Lender, its obligation to make Delayed Draw Term Loans to the Borrower on any applicable Delayed Draw Term Loan Funding Date pursuant to Section 2.01(b) in the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Delayed Draw Term Loan Commitment”. The aggregate amount of the Delayed Draw Term Loan Commitments (i) on the Closing Date was $40,000,000, (ii) on the FirstFifteenth Amendment Effective Date, after giving effect to the First Amendment, was $90,000,000, which such Delayed Draw Term Loan Commitments were reduced to $0 upon the funding of the Delayed Draw Term Loans in respect thereof, (iii) on the Fourth Amendment Effective Date, after giving effect to the Fourth Amendment, was $70,000,000 (the Delayed Draw Term Loan Commitment described in this clause (iii), the “Fourth Amendment Delayed Draw Term Loan Commitment Increase”), which such Fourth Amendment Delayed Draw Term Loan Commitment Increase was reduced to $0 upon the funding of the Delayed Draw Term Loans in respect thereof, (iv) on the Fifth Amendment Effective Date, after giving effect to the Fifth Amendment, is $44,000,000 (the Delayed Draw Term Loan Commitment described in this clause (iv), the “Fifth Amendment Delayed Draw Term Loan Commitment Increase”), which such Fifth Amendment Delayed Draw Term Loan Commitment Increase was reduced to $0 upon the funding of the Delayed Draw Term Loans in respect thereof, and (v) on the Ninth Amendment Effective Date, after giving effect to the Ninth Amendment, is $100,000,000 (the Delayed Draw Term Loan Commitment described in this clause (v), the “Ninth Amendment Delayed Draw Term Loan Commitment Increase”). is $100,000,000.

“Delayed Draw Term Loan Funding Date” shall mean one or more dates on which Delayed Draw Term Loans are made.

“Delayed Draw Termination Date” shall mean the earlier to occur of (a) the date on which the Delayed Draw Term Loan Commitments have been reduced to $0 as a result of the funding thereof in full or the termination thereof in accordance with Section 2.07 and (b) December 31May 10, 20242026.

“Deposit Account” shall have the meaning assigned to such term under the UCC.

 

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“Designated Noncash Consideration” shall mean the fair market value at the time received (as determined in good faith by the Borrower) of any non-cash consideration received by the Borrower or any Subsidiary in connection with an Asset Sale that is designated as Designated Noncash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Noncash Consideration. A particular item of Designated Noncash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 6.04.

“Disposed EBITDA” shall mean, with respect to any Disposed Entity or Business for any period, the amount for such period of Consolidated EBITDA of such Disposed Entity or Business (determined as if references to Holdings and the Subsidiaries in the definition of Consolidated EBITDA were references to such Disposed Entity or Business and its respective Subsidiaries), all as determined on a consolidated basis for such Disposed Entity or Business.

“Disposed Entity or Business” shall have the meaning assigned to such term in the definition of “Consolidated EBITDA.”

“Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date 91 days after the earlier of the Maturity Date or the date the Loans are no longer outstanding, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a) above, in each case at any time on or prior to the date 91 days after the earlier of the Maturity Date or the date the Loans are no longer outstanding, or (c) contains any repurchase obligation which may come into effect prior to Payment in Full of all Obligations; provided, however, that any Equity Interests that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale shall not constitute Disqualified Capital Stock if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the Payment in Full of the Obligations; and provided, further, that any Equity Interest issued to or by any plan for the benefit of former, current or future employees, directors, officers, members of management or consultants shall not constitute Disqualified Capital Stock solely because it is required to be repurchased in order to satisfy applicable statutory or regulatory obligations or as a result of the termination, death or disability of any such employee, director, officer, member of management or consultant; and provided, further, however, that any Equity Interest subject to a put right pursuant to Section 7.5 of the Parent LLC Agreement shall not constitute Disqualified Capital Stock.

“Disqualified Lenders” shall mean those banks, financial institutions, and other institutional lenders and investors (a) that have been identified by name in writing by Borrower to the Lender RepresentativeAgents on or prior to September 8, 2017the Fifteenth Amendment Effective Date; (b) those persons who are competitors of the Loan Parties or their Subsidiaries that are identified by name in writing by Borrower to the Lender Representative (as defined in this Agreement as in effect prior to the Fifteenth Amendment Effective Date), or, if after the ClosingFifteenth Amendment Effective Date, by the Borrower to the Lender Representative and the Agents from time to time (which shall not apply to retroactively disqualify any person who (i) previously acquired, and continues to hold, any loans, Commitments or participations in respect of any Loans or Commitments, or (ii) is a party to a pending trade as of the date of such identification); (c) that have been identified by name in writing by Borrower after September 8, 2017the Fifteenth Amendment Effective Date and mutually agreed by the Lender

 

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RepresentativeAgents (acting at the direction of the Required Lenders); and (d) in the case of each of clauses (a), (b), and (c), any of their Affiliates (excluding bona fide debt fund affiliates in the case of competitors only) that are either (i) identified by name in writing by the Borrower to the Lender Representative, or, if after the Closing Date, by the Borrower to the Lender Representative and the Administrative Agent Agents from time to time, which shall not apply retroactively to disqualify any person who (x) previously acquired, and continues to hold, any Loans, Commitments, or participations in respect of any Loans or Commitments or (y) is party to a pending trade as of the date of such identification) or (ii) readily identifiable solely on the basis of such Affiliate’s name.

“Distributed Shares” shall have the meaning assigned to such term in the second recital hereto.

“Dividend” with respect to any person shall mean that such person has declared or paid a dividend or returned any equity capital to the holders of its Equity Interests or made any other distribution, payment or delivery of property (other than Qualified Capital StockEquity Interests of such person) or cash to the holders of its Equity Interests in their capacity as such.

“Division” shall mean the division of a limited liability company into two or more limited liability companies in accordance with the Requirements of Law in the applicable jurisdiction of organization or formation, and the term “Divide” shall have the meaning correlative thereto.

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

“Domestic Subsidiary” shall mean any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.

“Early Opt-in Election” shall mean the delivery of a notification by the Administrativeapplicable Agent (at the request of the Borrower) to each of the other parties hereto that (a) U.S. dollar-denominated syndicated credit facilities are being executed or amended, as applicable, at such time, to incorporate or adopt a new benchmark interest rate to replace Term SOFR (and such syndicated credit facilities are identified in such notice and are publicly available for review) and (b) the joint election by the Administrativeapplicable Agent and the Borrower to trigger a fallback from Term SOFR; provided that upon such joint election to trigger a fallback from Term SOFR, the Administrativeapplicable Agent shall deliver a written notice of such election to the applicable Lenders.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

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

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eleventh Amendment” shall mean that certain Eleventh Amendment to Credit Agreement, dated as of the Eleventh Amendment Effective Date, by and among the Borrower, Holdings, the Guarantors party thereto, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

 

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“Eleventh Amendment Effective Date” shall mean July 28, 2022.

“Eleventh Amendment Fee Letter” shall mean that certain Fee Letter, dated as of May 20, 2022, by and among the Borrower and Blackstone.

“Eleventh Amendment Incremental Term Loan” shall have the meaning assigned to such term in the Eleventh Amendment.

“Eleventh Amendment Incremental Term Loan Commitment”shall have the meaning assigned to such term in the Eleventh Amendment.

“Eligible Assignee” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund of a Lender, (d) each of Holdings and the Borrower, solely in the case of an assignment of Term Loans to Holdings or the Borrower (as applicable) in accordance with Section 10.04(g), and (e) any other Person that, in the case of an assignment of Loans or Commitments pursuant to Section 10.04(a), has been consented to by the Administrativeapplicable Agent and, to the extent required by Section 10.04(a), the Borrower, in each case, in accordance with Section 10.04(a); other than, in each case, (i) a Disqualified Lender, (ii) a Sanctioned Person, (iii) a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person, other than any holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, any Closing Date Investor, (iv) Holdings and its Subsidiaries, except with respect to assignment of Terms Loans to Holdings and/or the Borrower in accordance with Section 10.04(g) and, (v) Affiliates of Holdings and its Subsidiaries, except for Affiliated Lenders in accordance with Section 10.04(f) and (vi) a Defaulting Lender.

“EMU” means the economic and monetary union as contemplated in the Treaty on European Union.

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

“Environmental Claim” shall mean any written claim, written notice, written demand, order, action, suit, proceeding alleging liability for or obligation with respect to any investigation, remediation, removal, cleanup, response, corrective action, damages to natural resources, personal injury, property damage, fines, penalties or other costs resulting from, related to or arising out of (a) the presence, Release or threatened Release of Hazardous Material at any location or (b) any violation or alleged violation of any Environmental Law, and shall include any claim seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material.

“Environmental Law” shall mean any and all present and future applicable treaties, laws, statutes, ordinances, regulations, rules, decrees, orders, judgments, consent orders, consent decrees, code or other legally binding requirements, in each case having the force and effect of law, and the common law, relating to protection of public health as it relates to exposure to Hazardous Materials or the protection of the Environment, the Release or threatened Release of Hazardous Material, the protection of natural resources or natural resource damages, or occupational safety or health as it relates to exposure to Hazardous Materials, and any and all applicable Environmental Permits.

“Environmental Lien” shall mean any Lien in favor of any Governmental Authority pursuant to any Environmental Law.

 

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“Environmental Permit” shall mean any permit, license, approval, registration, notification, exemption, consent or other authorization required by or from a Governmental Authority under Environmental Law.

“Equity Contribution” shall have the meaning assigned to such term in the fourth recital hereto.

“Equity Cure Contribution” shall have the meaning assigned to such term in Section 8.04.

“Equity Interest” shall mean, with respect to any person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on, or issued after, the Closing Date, but excluding debt securities convertible or exchangeable into such equity.

“Equity Issuance” shall mean, without duplication, (a) any issuance or sale by Holdings after the Closing Date of any Equity Interests (including any Equity Interests issued upon exercise of any warrant or option (or any warrants or options to purchase Equity Interests)) or (b) any contribution to the capital of Holdings.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” shall mean, with respect to any person, any entity, trade or business (whether or not incorporated) that, together with such person, is, or at the relevant time was, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included such person, or that is, or was at the relevant time, a member of the same “controlled group” as such person pursuant to Section 4001(a)(14) of ERISA.

“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA, with respect to a Plan (other than an event for which the 30-day notice period is waived by regulation), (b) the failure of any Plan to satisfy the minimum funding standard applicable to such Plan within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by Holdings, the Borrower, any other Subsidiary, or any of their ERISA Affiliates of any liability under Title IV of ERISA (other than for PBGC premiums due but not delinquent under Section 4007 of ERISA) with respect to the termination of any Plan or the withdrawal or partial withdrawal of Holdings, the Borrower, any other Subsidiary, or any of their ERISA Affiliates from any Plan or Multiemployer Plan, (e) the receipt by Holdings, the Borrower, any other Subsidiary, or any of their ERISA Affiliates from the PBGC or the administrator of any Plan or Multiemployer Plan of any written notice of intent to terminate any such Plan or Multiemployer Plan under Sections 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to appoint a trustee to administer any Plan under Section 4042 of ERISA, (f) the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 436(f) of the Code or Section 206(g) of ERISA, (g) a complete or partial withdrawal by Holdings, the Borrower, any other Subsidiary, or any ERISA Affiliate, from a Multiemployer Plan or written notification that a Multiemployer Plan is insolvent (within

 

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the meaning of Section 4245 of ERISA) or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), (h) the occurrence of a non-exempt “prohibited transaction” with respect to which Holdings, the Borrower, any other Subsidiary, or any of their ERISA Affiliates is a “disqualified person” (within the meaning of Section 4975 of the Code) and with respect to which any of the Loan Parties or any of their ERISA Affiliates could reasonably be expected to have any liability, (i) a written determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA), (j) the failure by Holdings, the Borrower, any other Subsidiary, or any of their ERISA Affiliates to make by its due date, after the expiration of any applicable grace period, a required installment under Section 430(j) of the Code with respect to any Plan, or (k) the failure by Holdings, the Borrower, any other Subsidiary, or any of their ERISA Affiliates to make any required contribution to a Multiemployer Plan, after the expiration of any applicable grace period.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

“Events of Default” shall have the meaning assigned to such term in Section 8.01.

“Excess Cash Flow” shall mean, for any Excess Cash Flow Period, (a) Consolidated EBITDA for such period (calculated without giving Pro Forma Effect to any Specified Transaction and without giving effect to clauses (j)(i), (s), (u) and (wy)(i) of the definition of Consolidated EBITDA), plus (b) any decrease in Working Capital for such period, minus, (c) in each case, without duplication:

(i) scheduled principal payments (including the principal component of payments under Capital Lease Obligations) in respect of Indebtedness of Holdings or any of its Subsidiaries made during such Excess Cash Flow Period to the extent not funded with the proceeds of Indebtedness (other than revolving Indebtedness); minus

(ii) without duplication of amounts deducted pursuant to clause (xvi) below in any prior Excess Cash Flow Period, the sum of (A) Capital Expenditures made during such Excess Cash Flow Period to the extent not funded with the proceeds of Equity Issuances or Indebtedness (other than revolving Indebtedness) and (B) expenditures made during such Excess Cash Flow Period from proceeds of Asset Sales and Casualty Events to the extent such proceeds are included in Consolidated EBITDA; minus

(iii) cash payments in respect of Consolidated Interest Expense made during such Excess Cash Flow Period; minus

(iv) amounts added back to Consolidated EBITDA pursuant to clauses (d), (e), (g), (m) and (st) of the definition thereof during such Excess Cash Flow Period, in each case to the extent paid in cash during such Excess Cash Flow Period and not funded with the proceeds of Equity Issuances or Indebtedness (other than revolving Indebtedness); minus

(v) amounts added back to Consolidated EBITDA pursuant to clauses (b), (c), (f), (i), (j), (k), (n) and (q) of the definition thereof during such Excess Cash Flow Period, in each case (other than with respect to clauses (b) and (n) of the definition of Consolidated EBITDA) solely to the extent the underlying charge, expense or loss does not constitute a non-cash charge, expense or loss;

(vi) any increase in Working Capital for such period; minus

(vii) amounts paid in cash for such period in respect of long-term liabilities (other than Indebtedness), to the extent not funded with the proceeds of Indebtedness (other than revolving Indebtedness); minus

 

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(viii) [reserved];

(ix) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash during such period that are made in connection with any repayment, early extinguishment or conversion of Indebtedness or hedging obligations or other derivative instruments to the extent such payments are not (x) expensed during such period or are not deducted in calculating Consolidated Net Income or (y) funded with the proceeds of Indebtedness (other than revolving Indebtedness); minus

(x) Restricted Payments paid in cash during such period to the extent permitted pursuant to Section 6.07(b)(i), (ii) or, (viii), (ix), (xi), (xii) and (xiii)); minus

(xi) [reserved];

(xii) without duplication of the amounts deducted pursuant to clause (xvi) below in any prior Excess Cash Flow Period, the aggregate consideration paid in cash (including Restricted Payments paid in cash during such period to the extent permitted pursuant to Section 6.07(b)(vii) and representing a portion of such consideration) for any Acquisitions consummated prior to the Closing Date, Permitted Acquisitions and other Investments not funded with the proceeds of Equity Issuances or Indebtedness (other than revolving Indebtedness); minus

(xiii) the amount of Permitted Tax Distributions and cash payments in respect of Consolidated Income Tax Expense of Holdings and its Subsidiaries with respect to such period to the extent added back to Consolidated EBITDA in accordance with this Agreement; minus

(xiv) cash expenses in respect of Hedging Agreements during such period; minus

(xv) financing fees, acquisition and development of software and other Intellectual Property and any other cash expenditures, in each case, that are capitalized in accordance with GAAP; minus

(xvi) the aggregate consideration required to be paid in cash by Holdings or any of its Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Investments or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period; provided that to the extent (i) the aggregate amount of cash payments actually utilized to finance such Permitted Acquisitions, Investments or Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration or (ii) such cash payments are funded with the proceeds of Equity Issuances or Indebtedness (other than revolving Indebtedness), the amount of such shortfall or such portion funded with the proceeds of Equity Issuances or Indebtedness (other than revolving Indebtedness) shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters.; minus

(xvii) [reserved];

(xviii) at the option of the Borrower, any amounts in respect of investments (including Permitted Acquisitions, Investments constituting Permitted Investments and Investments made pursuant to Section 6.07) and Restricted Payments which could have been deducted pursuant to clauses (x), (xii) and (xiii) above if made in such period, but which are made after the end of such period and prior to the date upon which a mandatory prepayment for such period would be required under Section 2.09(b)(i) (which amounts, if so deducted in accordance with this clause (xviii), shall not affect the calculation of Excess Cash Flow in any future period).

 

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Notwithstanding anything herein or in the definition of any term used in the definition of Excess Cash Flow to the contrary, all components of Excess Cash Flow shall be computed for Holdings and its Subsidiaries on a consolidated basis.

“Excess Cash Flow Percentage” shall mean, with respect to an Excess Cash Flow Period, 50%; provided that (a) if the Total Net Leverage Ratio at the end of the applicable Excess Cash Flow Period is greater than 3.40:1.00 but less than or equal to 4.25:1.00, such percentage shall be 25% and (b) if the Total Net Leverage Ratio at the end of the applicable Excess Cash Flow Period is less than or equal to 3.40:1.00, such percentage shall be 0%.

“Excess Cash Flow Period” shall mean (i) the fiscal years of Holdings ending December 31, 2018 and December 31, 2019, (ii) the two fiscal quarter-period of Holdings commencing on July 1, 2022 and ending December 31, 2022 and (iii) each fiscal year of Holdings starting with the fiscal year ending on or after December 31, 20232024.

“Excess Proceeds” shall mean Net Cash Proceeds from Asset Sales and Casualty Events in an aggregate amount in excess of $1,500,000 per annum that are not applied or invested as provided in Section 2.09(b)(vi).

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Excluded Account” shall mean any deposit account, securities account or commodities account (a) used solely for payroll, payroll taxes and other employee wage and benefits payments, (b) constitutes a trust, fiduciary, escrow or tax payment account, including, without limitation, sales tax accounts, (c) constitutes a zero balance deposit account, (d) that is designated as an escrow account or that holds funds for the benefit of third parties, (e) in which less than $1,250,000 is maintained on average over any period of 30 consecutive days[reserved], (f) used primarily for deposits of governmental receivables or (g) that is maintained solely to hold the proceeds of any Receivables Facility that is permitted hereunder (other than any Existing Receivables Facility), is subject to the Lien of the counterparty with respect to such Receivables Facility and is prohibited by the terms of the definitive agreements with respect to such Receivables Facility from being subject to the Lien of the Collateral Agent.

“Excluded Collateral” shall mean (a) any fee-owned real property with a fair market value (as reasonably determined in good faith by the Borrower as of the Closing Date, or, if such real property is acquired after the Closing Date, as of the date of acquisition thereof) of less than $3,000,00012,500,000, any fee-owned real property located in a special flood hazard area and all leasehold interests in real property (it being understood that there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters); (b) motor vehicles, aircrafts, and other assets subject to certificates of title, but only to the extent a Lien thereon cannot be perfected by the filing of a financing statement (or equivalent); (c) Letter-of-Credit Rights with aan individual value of less than $2,000,000 in the aggregate for all such Letter-of-Credit Rights5,000,000, except to the extent constituting Supporting Obligations in respect of other Collateral which may be perfected by the filing of a financing statement (or equivalent) and Commercial Tort Claims with aan individual value of less than $2,000,000 in the aggregate for all such Commercial Tort Claims;5,000,000; (d) Equity Interests of any CFC or CFC Holdco other than 65% of the outstanding Equity Interests of any first-tier CFC or first-tier CFC Holdco, and all direct or indirect assets of any CFC or CFC Holdco; (e) (i) Equity Interests constituting Margin Stock and (ii) any Equity Interests in any person not constituting a Wholly Owned Subsidiary to the extent that (x) such Equity Interests cannot be pledged without the consent of one or more third parties and which consent has not been obtained or to the extent prohibited by such person’s Organizational Documents (to the extent such consent requirement or prohibition exists on the Closing Date or on the date of acquisition of such Equity Interests and was not entered into in contemplation of such acquisition) or (y) the pledge of such Equity Interests

 

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(including any exercise of remedies) would result in a change of control, repurchase obligation or other material adverse consequence to any of the Loan Parties or such person not constituting a Wholly Owned Subsidiary; (f) any contract, lease, permit, license, or license agreement covering real or personal property or any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of any Loan Party, in each case, to the extent permitted by this Agreement, if under the terms of such contract, lease, permit, license, or license agreement, or applicable law (including, without limitation, rules or regulations of any Governmental Authority) with respect thereto, the grant of a security interest or Lien therein does or would violate or invalidate such contract, lease, permit, license, or license agreement or create a right of termination in favor of any other party thereto (other than in favor of a Loan Party or a Subsidiary thereof); (g) any asset owned by any Loan Party on the Closing Date or hereafter acquired by a Loan Party that is subject to a Lien securing a Purchase Money Obligation (including any Capital Lease Obligations) or othersimilar obligation permitted to be incurred pursuant to Section 6.01(d), (n) or (u) or Section 6.01(b) to the extent such obligation is of the same type as any obligation permitted to be incurred pursuant to Section 6.01(d), (n) or (u)a Purchase Money Obligation (including any Capital Lease Obligations) or similar obligations, only to the extent and for so long as the contract or other agreement pursuant to which such Lien is granted (or the documentation providing for such Purchase Money Obligation (or such Capital Lease Obligation)) prohibits the creation of any other Lien on such asset and its proceeds or such Lien would violate or invalidate such contract or other agreement or create a right of termination in favor of any other party thereto (other than in favor of a Loan Party or a Subsidiary thereof); (h) governmental licenses, state or local franchises, charters and authorizations or any other particular asset or right under contract, to the extent that the grant of a security interest or Lien therein is prohibited under applicable law (including, without limitation, rules or regulations of any Governmental Authority) or the pledge or creation of a security interest in which would require governmental consent, approval, license or authorization (it being agreed that there shall be no requirement to comply with the Federal Assignment of Claims Act or any similar statute) or the consent of a third party (to the extent such consent requirement or prohibition exists on the Closing Date or on the date of acquisition of such license, franchise, charter, authorization or other asset or right under contract and was not entered into in contemplation of such acquisition); (i) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided that upon submission and acceptance by the United States Patent and Trademark Office of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use trademark application shall be considered Collateral; (j) Excluded Accounts and the funds or other property held therein; (k) assets as to which the Lender RepresentativeCollateral Agent and the Borrower reasonably agree in writing that the cost and/or burden of obtaining such a security interest or perfection thereof (including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary)) are excessive in relation to the benefit to the Lenders of the security to be afforded thereby; or (l) any property or assets for which the creation or perfection of pledges of, or security interests in, such property or assets in favor of the Collateral Agent would result in material adverse tax consequences to Holdings and its Subsidiaries, taken as a whole (as reasonably determined in good faith by the Borrower); provided that (A) the foregoing exclusions of clause (f) through (h) shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the New York UCC or other applicable law or (2) to apply to the extent that any consent or waiver has been obtained that would permit Collateral Agent’s security interest or Lien to attach notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement or governmental licenses, state or local franchises, charters or authorizations, as applicable; and (B) the foregoing exclusions of clauses (a) through (h) shall in no way be construed to limit, impair, or otherwise affect any of Collateral Agent’s continuing security interests in and Liens upon any rights or interests of any Loan Party in or to any proceeds or receivables therefrom, including from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, license agreement, governmental license, state or local franchise, charter or authorization, Accounts or Equity Interests.

 

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“Excluded Subsidiary” shall mean, with respect to Holdings (provided, that in no event shall the Borrower constitute an Excluded Subsidiary):

(a) any Immaterial Subsidiary that does not own any Material Intellectual Property (provided that, to the extent any such Subsidiary no longer qualifies as an Immaterial Subsidiary, such Subsidiary shall cease to be an Excluded Subsidiary by virtue of this clause (a));

(b) each CFC Holdco (provided that, to the extent any such Subsidiary shall cease to be a CFC Holdco, such Subsidiary shall cease to be an Excluded Subsidiary by virtue of this clause (b));

(c) each Foreign Subsidiary other than the Schroth German Subsidiaries (provided that, to the extent any such Subsidiary shall become a Domestic Subsidiary, it shall cease to be an Excluded Subsidiary by virtue of this clause (c));

(d) each Subsidiary that is not a Wholly Owned Subsidiary (provided that in the case of a Subsidiary that ceases to be a Wholly Owned Subsidiary after the Fifteenth Amendment Effective Date, such Subsidiary qualifies as such as a result of a bona fide transaction with a Person that is not an Affiliate of Holdings; provided, further, that, to the extent any such Subsidiary shall become a Wholly Owned Subsidiary, such Subsidiary shall cease to be an Excluded Subsidiary by virtue of this clause (d));

(e) any Subsidiary existing on or acquired after the Closing Date to the extent that, and for so long as, such Subsidiary is prohibited by any Requirements of Law from guaranteeing the Obligations;

(f) any Subsidiary existing on or acquired after the Closing Date, to the extent and for so long as (but only so long as) (i) the guarantee of the Obligations by such Subsidiary would require the consent, approval, license or authorization of a Governmental Authority which has not been obtained or (ii) solely in the case of Subsidiaries acquired after the Closing Date pursuant to a Permitted Acquisition, by any restriction of contract (to the extent such restriction was not entered into or did not arise in contemplation of such acquisition) (including any requirement to obtain third party consent which has not been obtained);

(g) each Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary (other than any Schroth German Subsidiary) or a CFC Holdco;

(h) any not-for-profit Subsidiaries;

(i) any special purposes entities;

(j) any Subsidiary to the extent that the Lender RepresentativeCollateral Agent and the Borrower reasonably agree in writing that the cost and/or burden of obtaining a guarantee are excessive in relation to the benefit to the Lenders;

(k) any Subsidiary to the extent the provision of a guarantee by such Subsidiary would result in material adverse tax consequences to Holdings and its Subsidiaries, taken as a whole (as reasonably determined in good faith by the Borrower);

(l) captive insurance companies;

(m) any direct or indirect Subsidiary of a Subsidiary that is excluded pursuant to clauses (a) through (l) above; and

 

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(n) solely in the case of any Hedging Obligations that would otherwise be secured by Collateral, any Subsidiary that is not an “eligible contract participant” as defined in the Commodity Exchange Act;

provided that, notwithstanding the foregoing, “Excluded Subsidiary” shall not include any of the Schroth German Subsidiaries. Upon any such Subsidiary ceasing to be an Excluded Subsidiary pursuant to clauses (a) through (n) above, such Subsidiary shall comply with Section 5.10, to the extent applicable.

“Excluded Swap Obligation” shall mean with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the guarantee of or the grant of such security interest by such Guarantor would otherwise have become effective with respect to such related Swap Obligation or (b) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interests is or becomes illegal.

“Excluded Taxes” shall mean, with respect to any Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on or measured by its net income, gross income, net profits or gross profits (in each case, however denominated) and franchise or capital Taxes imposed on it, by a jurisdiction (or any political subdivision thereof) (i) as a result of such recipient being organized or having its principal office (or, in the case of any Lender, applicable lending office) in, such jurisdiction, or (ii) as a result of any other present or former connection between the jurisdiction imposing such Tax and such recipient other than a connection solely as a result of having executed or delivered, become a party to, performed its obligations or received a payment under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document or sold or assigned an interest in any Loan or any Loan Document, (b) any branch profits Taxes imposed under Section 884(a) of the Code or any similar Tax by any jurisdiction described in clause (a), (c) in the case of a Lender, any U.S. federal withholding Tax that is imposed on amounts payable to such Lender pursuant to laws in force at the time such Lender becomes a party hereto (or designates a new lending office), except (x) to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding Tax pursuant to Section 2.14(a) or (y) if such Lender is an assignee pursuant to a request by the Borrower under Section 2.15, (d) Taxes attributable to a Lender’s failure to comply with Section 2.14(e), and (e) any U.S. federal withholding Tax imposed under FATCA.

“Exercise of Remedies” shall have the meaning assigned to such term in Section 1.11.

 

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“Existing Receivables Facilities” shall mean (a) the Receivables Facility of AGC Acquisition LLC pursuant to the Supplier Agreement, dated as of May 28, 2013, with Citibank, N.A. and (b) the Receivables Facility of Applied Engineering, Inc. pursuant to the Supplier Agreement, dated as of May 11, 2004, with Citibank, N.A., in each case, as amended, supplemented, modified or restated from time to time in a manner not materially adverse to the Lenders (it being agreed that any amendment, supplement, modification or restatement to any Existing Receivables Facility with the effect of adding or replacing the Buyer (as defined in the applicable Existing Receivables Facility) named therein (other than any replacement of such Buyer with its successors by operation of law) shall be deemed to be materially adverse to the Lenders).

“Existing Revolving Tranche” shall have the meaning assigned to it in Section 2.16(b).

“Extended Revolving Credit Commitments” shall have the meaning assigned to such term in Section 2.16(b).

“Extended Revolving Credit Loans” means one or more Classes of Revolving Credit Loans that result from an Extension Amendment.

“Existing Term Loan Tranche” shall have the meaning assigned to it in Section 2.16(a).

“Extended Term Loan” shall have the meaning assigned to such term in Section 2.16(a).

“Extending Term Loan Lender” shall have the meaning assigned to such term in Section 2.16(bc).

“Extension” means the establishment of an Extension Series by amending a Loan or Commitment pursuant to Section 2.16 and the applicable Extension Amendment.

“Extension Amendment” shall have the meaning assigned to it in Section 2.16(cd).

“Extension Election” shall have the meaning assigned to it in Section 2.16(bc).

“Extension Request” shall have the meaning assigned to it in Section 2.16(ab).

“Extension Series” shall have the meaning assigned to it in Section 2.16(ab).

“Fair Market Value” shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by the Borrower.

“FATCA” shall mean (a) Sections 1471 through 1474 (including, for the avoidance of doubt, any agreement entered into pursuant to Section 1471(b)(1)) of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and the U.S. Treasury Regulations and official published guidance with respect thereto, whether in existence on the date hereof or promulgated thereafter and (b) any intergovernmental agreement implementing (a) above and including any rules or guidance implementing such intergovernmental agreements.

“FCPA” shall mean the United States Foreign Corrupt Practices Act 1977, 18 U.S.C. 78dd-1 et seq., as amended.

 

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“Federal Funds Effective Rate” shall mean, for any day, a fluctuating interest rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrativeapplicable Agent from three federal funds brokers of recognized standing selected by it.

“Fee Letter” shall mean that certain Fee Letter, dated as of September 8, 2017, by and between the Borrower and Blackstone.

“FifthFifteenth Amendment” shall mean that certain FifthFifteenth Amendment to Credit Agreement and First Amendment to Security Agreement dated as of the FifthFifteenth Amendment Effective Date by and among the Borrower, Holdings, the Guarantors party thereto, and the Lenders party thereto, the Administrative Agent and the Collateral Agent.

“FifthFifteenth Amendment Effective Date” shall mean October 16May 10, 20192024.

“Fifth Amendment Delayed Draw Term Loan Commitment Increase” shall have the meaning assigned to such term in the definition of “Delayed Draw Term Loan Commitment”.

“Financial Officer” of any person shall mean the chief executive, chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of such person or such other person reasonably acceptable to the Administrative Agent.

“First AmendmentLien Net Leverage Ratio” shall mean that certain First Amendment to Credit Agreement dated as of the First Amendment Effective Date by and among the Borrower, Holdings, the Guarantors party thereto, the Lenders party thereto, the Administrative Agent and the Collateral Agent., at any date of determination, the ratio of (a) Consolidated Indebtedness that is secured by a Lien on the Collateral (other than Consolidated Indebtedness that is secured by a Lien on the Collateral that is junior in priority to the Liens securing the Obligations), net of unrestricted cash and Cash Equivalents of Holdings and its Subsidiaries, in each case, at such time, to (b) Consolidated EBITDA for the Test Period then most recently ended.

“First Amendment Effective Date” shall mean August 10, 2018.

“Floor” shall mean (x) with respect to Initial Term Loans and Delayed Draw Term Loans, 1.00% per annum and (y) with respect to Revolving Credit Loans, 0% per annum.

“Foreign Lender” shall mean any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“Foreign Plan” shall mean, except for each plan, scheme or arrangement to which contributions are mandated by a government or governmental authority other than the United States, any employee benefit plan maintained or contributed to by any Company primarily to provide defined benefit pension benefits to employees employed outside the United States.

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

“Fronting Fee” shall have the meaning assigned to it in Section 2.05(d).

 

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“Fourth Amendment” shall mean that certain Fourth Amendment to Credit Agreement dated as of the Fourth Amendment Effective Date by and among the Borrower, Holdings, the Guarantors party thereto, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

“Fourth Amendment Effective Date” shall mean May 17, 2019.

“Fourth Amendment Delayed Draw Term Loan Commitment Increase” shall have the meaning assigned to such term in the definition of “Delayed Draw Term Loan Commitment”.

“GAAP” shall mean generally accepted accounting principles in the United States, applied in accordance with Section 1.04.

“GE Capital Lease” shall mean the Real Property lease pursuant to the Lease Agreement, dated as of April 12, 2017, by and between 151 Sheree Boulevard Partners, LLC and General Ecology, Inc., as amended, restated, supplemented or otherwise modified from time to time.

“GE Earn-out” shall mean the future payment(s) of existing earn-out obligations incurred in connection with the acquisition of General Ecology, Inc., a Pennsylvania corporation.

“German Security Documents” means, subject to the Agreed Security Principles, the following German law governed security agreements: (a) a share or interest pledge agreement over the shares or partnership interests in any Schroth German Subsidiary; (b) account pledge agreements in respect of all bank accounts held by any Schroth German Subsidiary; (c) an assignment of German law intercompany receivables and third party trade receivables owed to any Schroth German Subsidiary and (d) a pledge agreement over any intellectual property rights owned by any Schroth German Subsidiary.

“GmbH Guarantee” shall have the meaning assigned to it in Section 7.12(a).

“GmbH Guarantee Obligations” shall have the meaning assigned to it in Section 7.12(a).

“GmbH Guarantor” shall have the meaning assigned to it in Section 7.12(a).

“GmbHG” shall mean the German Limited Liability Companies Act (Gesetz betreffend Gesellschaften mit beschränkter Haftung).

“Governmental Authority” shall mean the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

““Greenshoe Closing Date” means, with respect to any Greenshoe Option, the date on which the exercise of such Greenshoe Option is consummated.

“Greenshoe Option” means any “greenshoe”, “over-allotment” or similar option by the underwriters with respect to any IPO.

“Guaranteed Obligations” shall have the meaning assigned to such term in Section 7.01.

“Guarantees” shall mean the guarantees issued pursuant to Article VII by the Guarantors.

 

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“Guarantors” shall mean (a) Holdings and each Subsidiary of Holdings listed on Schedule 1.01(a) on the ClosingFifteenth Amendment Effective Date and (b) each other Subsidiary that is or becomes a party to this Agreement pursuant to Section 5.10(b).

“Hazardous Materials” shall mean the following: hazardous substances; hazardous wastes; polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs; asbestos or any asbestos-containing materials in any form or condition; radon or any other radioactive materials; petroleum, crude oil or any fraction thereof; and any other pollutant or contaminant or chemicals, wastes, materials, compounds, constituents or substances, regulated under any Environmental Laws.

“Hedge Bank” shall mean any person that enters into a Hedging Agreement with Holdings or any Subsidiary; provided that, in the case of any Secured Hedging Agreement, if such person is not a Lender, (a) such person and the Secured Hedging Agreement between such person and Holdings or its relevant Subsidiary are reasonably acceptable to the Lender RepresentativeAdministrative Agent and Collateral Agent (in each case, acting at the direction of the Required Lenders) and (b) such person executes and delivers to the Agents a letter agreement in form and substance reasonably acceptable to the Agents, the Lender RepresentativeAdministrative Agent and Collateral Agent (in each case, acting at the direction of the Required Lenders) and the Borrower pursuant to which such person (i) appoints thesuch Agents as its agents under the applicable Loan Documents and (ii) agrees to be bound by the provisions of Article IX and Section 8.03 of this Agreement and corresponding or similar provisions in any Security Document, in each case, as if it were a Lender.

“Hedging Agreement” shall mean (i) any swap, cap, collar, forward purchase or similar agreements or arrangements dealing with interest rates, currency exchange rates or commodity prices, either generally or under specific contingencies, whether or not any such transaction is governed by or subject to any master agreement, and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Hedging Obligations” shall mean obligations under or with respect to Hedging Agreements.

“Holdings” shall have the meaning assigned to such term in the preamble hereto.

“Hydra” means Hydra-Electric Company, a California corporation.

“Hydra Acquisition” means the acquisition by the Borrower of 100% of the Equity Interests of Hydra pursuant to the Hydra Purchase Agreement.

“Hydra Acquisition Equity Contribution” means the equity contribution to be provided by the Closing Date Investors or other investors reasonably satisfactory to the Lender Representative in Holdings or its direct or indirect parent company of at least $33,000,000 (as adjusted in accordance with clause (ii) of the definition of “Hydra Purchase Agreement Prohibited Amendment”), with all of such equity investment to be made in cash in exchange for common Equity Interests, the cash proceeds of which shall be applied to consummate the Hydra Acquisition.

“Hydra Purchase Agreement” means that certain Stock Purchase Agreement, dated as of the Fourth Amendment Effective Date, by and among Hydra, Wilson HEC, LLC and the Borrower, as amended, supplemented, modified or restated from time to time.

 

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“Hydra Purchase Agreement Prohibited Amendment” means, with respect to the Hydra Purchase Agreement, any modifications, amendments or express waivers or consents thereto that are adverse in any material respect to the Lenders in their capacities as such without the consent of the Lender Representative (it being understood and agreed that (i) any change to the definition of “Material Adverse Effect” contained in the Hydra Purchase Agreement shall be deemed to be materially adverse to the Lenders and (ii) any increase or reduction in the purchase price shall be deemed not to be materially adverse to the Lenders if, (x) in the case of any increase in the purchase price, such increase shall be funded solely with an increase in the Hydra Acquisition Equity Contribution, or (y) in the case of any decrease in the purchase price, (1) such decrease shall not exceed $7,000,000 and (2) 50% of such purchase price decrease is allocated to reduce the Hydra Acquisition Equity Investment and 50% of such purchase price decrease is allocated to permanently reduce the Delayed Draw Term Loan Commitment, provided, further, that in the case of clause (ii), working capital adjustments, purchase price adjustments and other similar adjustments set forth in the Hydra Purchase Agreement shall be deemed not to be either an increase or a decrease to the purchase price.

“Immaterial Subsidiary” shall mean any Subsidiary of Holdings (provided, that in no event shall the Borrower constitute an Immaterial Subsidiary) that (a) did not, as of the last day of the fiscal quarter of Holdings most recently ended for which financial statements are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable (or, as of the Closing Date, the most recent financial statements delivered prior to the Closing Date), have assets (on an individual basis) with a value in excess of 2.55.0% of Consolidated Total Assets (for Holdings and its Subsidiaries on a consolidated basis) or Consolidated EBITDA (on an individual basis) representing in excess of 2.55.0% of Consolidated EBITDA (for Holdings and its Subsidiaries on a consolidated basis and calculated on a Pro Forma Basis) as of such date for the Test Period most recently ended, and (b) taken together with all Immaterial Subsidiaries as of the last day of the fiscal quarter of Holdings most recently ended for which financial statements are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable (or, as of the Closing Date, the most recent financial statements delivered prior to the Closing Date), did not have assets with a value in excess of 5.010.0% of Consolidated Total Assets or Consolidated EBITDA representing in excess of 5.010.0% of Consolidated EBITDA (for Holdings and its Subsidiaries on a consolidated basis and calculated on a Pro Forma Basis) as of such date for the Test Period most recently ended (or as of the Closing Date, as applicable); provided that if, as of the last day of the fiscal quarter of Holdings most recently ended for which financial statements are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable (or, as of the Closing Date, the most recent financial statements delivered prior to the Closing Date), the Consolidated Total Assets or Consolidated EBITDA of all Subsidiaries so designated by the Borrower as “Immaterial Subsidiaries” shall have, as of the last day of such Test Period, exceeded the limits set forth in clauses (a) or (b) above, then within ten (10) Business Days after the date such financial statements are so delivered (or so required to be delivered), the Borrower shall redesignate one or more Immaterial Subsidiaries in a written notice to the Administrative Agent, such that, as a result thereof, the Consolidated Total Assets and Consolidated EBITDA of all Subsidiaries that are still designated as “Immaterial Subsidiaries” do not exceed such limits. Upon any such Subsidiary ceasing to be an Immaterial Subsidiary pursuant to the preceding sentence, such Subsidiary shall comply with Section 5.10, to the extent applicable.

“Increasing LenderIncrease Effective Date” shall have the meaning assigned to such term in Section 2.17(ab).

“Incremental Amendment” shall have the meaning assigned to such term in Section 2.17(f).

“Incremental Amendment Date” shall have the meaning assigned to such term in Section 2.17(d).

 

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“Incremental Equivalent Debt” means Indebtedness of a Loan Party in the form of senior secured, junior lien, senior unsecured or subordinated loans or notes, or in each case, any bridge financing in lieu of the foregoing, or secured or unsecured “mezzanine” debt or commitments in respect of any of the foregoing issued, incurred or implemented in lieu of loans which would otherwise be permitted to be incurred under an Incremental Facility; provided, that:

(a) the aggregate outstanding amount thereof incurred after the Fifteenth Amendment Effective Date shall not exceed the Available Incremental Amount (excluding any amount pursuant to clause (E) or (F) of the definition thereof) at the time of such incurrence;

(b) the Weighted Average Life to Maturity applicable to such Incremental Equivalent Debt is no shorter than the Weighted Average Life to Maturity of the then existing Term Loans; provided, that this requirement shall not apply to Incremental Equivalent Debt in the form of bridge financings, escrow or similar arrangements that automatically extend or are convertible or exchangeable into other instruments meeting the requirements of this clause (b);

(c) the final maturity date with respect to such Incremental Equivalent Debt is no earlier than the Latest Maturity Date at the time of such incurrence, or if secured on a junior lien basis or unsecured, ninety-one (91) days after the Latest Maturity Date at the time of such incurrence; provided, that this requirement shall not apply to Incremental Equivalent Debt in the form of bridge financings, escrow or similar arrangements that automatically extend or are convertible or exchangeable into other instruments meeting the requirements of this clause (c);

(d) any Incremental Equivalent Debt shall be secured only by the Collateral (or a portion thereof) on a pari passu or junior lien basis to the then existing Initial Term Loans and shall only be guaranteed by the Guarantors (or a subset thereof) and any such Incremental Equivalent Debt that is secured shall be subject to an Acceptable Intercreditor Agreement; provided, that any Incremental Equivalent Debt may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a Guarantor; provided, further, that for the avoidance of doubt, any Incremental Equivalent Debt may also be unsecured;

(e) any Incremental Equivalent Debt (other than underwritten or syndicated “high yield” notes) that is pari passu in right of payment and secured by a Lien on the Collateral that is pari passu with the Lien securing the Initial Term Loans shall be subject to the MFN Adjustment (as though such Incremental Equivalent Debt were Incremental Term Loans);

(f) no Event of Default shall have occurred and be continuing at the time of funding or shall immediately result from the incurrence of any Incremental Equivalent Debt; provided, that, with respect to any Incremental Equivalent Debt incurred in connection with a Limited Condition Transaction, the foregoing condition shall not be required to be satisfied and instead (x) no Specified Event of Default shall have occurred and be continuing or would immediately thereafter result therefrom as of the date of such Credit Extension and (y) no Event of Default shall exist on the Limited Conditionality Test Date; and

(g) the terms and provisions of any Incremental Equivalent Debt shall, except as otherwise set forth herein, at the election of the Borrower (x) be substantially consistent with the terms and provisions applicable to the Term Loans existing on the date of incurrence of such Incremental Equivalent Debt or (y) not be materially more favorable (taken as a whole) to the lenders or investors providing such Incremental Equivalent Debt than those applicable to the then-existing Term Loans on such date of incurrence, taken as a whole, unless such terms and provisions

 

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are either (1) applicable after the Latest Maturity Date at the time of such incurrence or (2) included in this Agreement for the benefit of the existing Lenders (but excluding any terms and provisions applicable after the final maturity date of the then existing Term Loans in which case no such consent shall be required).

“Incremental Facility” shall have the meaning assigned to such term in Section 2.17(a).

“Incremental Facility Closing Date” shall have the meaning assigned to such term in Section 2.17(b).

“Incremental LendersLoans” shall have the meaning assigned to such term in Section 2.17(ad).

“Incremental Loan RequestRevolving Credit Commitments” shall have the meaning assigned to such term in Section 2.17(a).

“Incremental TermRevolving Credit Loan” shall have the meaning assigned to such term in Section 2.17(bd).

“Incremental Term Loan Commitments” shall have the meaning assigned to such term in Section 2.17(a).

“Incremental Term Loan IncreaseCommitments” shall have the meaning assigned to such term in Section 2.17(a).

“Incur” shall mean issue, assume, guarantee, incur or otherwise become directly, indirectly or contingently liable for any Indebtedness, including by a guaranty, put, purchase agreement or other agreement, contingent or otherwise, to purchase, redeem, retire, defease or otherwise acquire for value such Indebtedness; provided, however, that any Indebtedness of a person existing at the time such person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such person at the time it becomes a Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance with Section 6.01, (a) amortization of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security, (b) the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Equity Interests in the form of additional Equity Interests of the same class and with the same terms and (c) the obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of redemption or prepayment or making of a mandatory offer to purchase such Indebtedness, in each case shall be deemed not to be the Incurrence of Indebtedness.

“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money; (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person; (d) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding (i) trade and other ordinary course accounts payable, similar obligations to trade creditors and accruals for payroll and similar liabilities, in each case, incurred or accrued in the ordinary course of business, and, unless such payable, other obligation or liability is the subject of a bona fide dispute, not more than 180 days overdue any reimbursement obligations under any trade or commercial letters of credit and (ii) any earn-out obligation or similar contingent payment obligation, except to the extent that such obligation is not paid when earned and due and payable); (e) all Indebtedness of others secured by any Lien on property owned or acquired by such

 

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person, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property; (f) all Capital Lease Obligations and Purchase Money Obligations; (g) all Hedging Obligations to the extent required to be reflected on a balance sheet of such person; (h) [reserved]; (i) all obligations of such person for the reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions (other than any reimbursement obligations in respect of trade or commercial letters of credit); (j) any Disqualified Capital Stock of such Person; and (k) all Contingent Obligations of such person in respect of Indebtedness of others of the kinds referred to in clauses (a) through (j) above. The Indebtedness of any person shall include the Indebtedness of any other entity (including any partnership in which such person is a general partner) to the extent such person is liable therefor as a result of such person’s ownership interest in or other relationship with such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such person is not liable therefor.

“Indemnified Taxes” shall mean all Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document.

“Indemnitee” shall have the meaning assigned to such term in Section 10.03(b).

“Independent Assets or Operations” shall be deemed to exist with respect to any Parent Company if such Parent Company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in Holdings and its Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such Parent Company, is more than 5.0% of such Parent Company’s corresponding consolidated amount.

“Information” shall have the meaning assigned to such term in Section 10.12.

“Initial Borrower” shall have the meaning assigned to such term in the preamble hereto.

“IPO ” shall mean any transaction or series of related transactions (including any merger with any special purpose acquisition company or a Subsidiary thereof) after which the common Equity Interests of Holdings or any Parent Company constitutes publicly traded Equity Interests on any U.S. securities exchange.

“Initial Term Loan” shall mean the loans made on the Closing Date pursuant to Section 2.01(a). and all other “Extended Term Loans” (as defined in the Fifteenth Amendment) under and pursuant to the Fifteenth Amendment. The aggregate principal amount of the Initial Term Loans on the Fifteenth Amendment Effective Date is $252,898,598.45.

“Initial Term Loan Commitment” shall mean, with respect to any Lender, its obligation to make Initial Term Loans to the Borrower on the Closing Date pursuant to Section 2.01(a) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 (as in effect on the Closing Date) under the caption “Initial Term Loan Commitment”. The aggregate principal amount of the Initial Term Loan Commitments on the Closing Date (prior to giving effect to the making of the Initial Term Loans on the Closing Date) iswas $160,000,000.00.

“IPO” means any transaction or series of related transactions (including any merger with a special purpose acquisition company or a Subsidiary thereof) after which the common Equity Interests of Holdings or Parent constitutes publicly traded Equity Interests on any U.S. securities exchange.

 

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“IPO Closing Date” means the date on which the IPO is consummated.

“Intellectual Property” shall have the meaning assigned to such term in the Security Agreement.

“Intercompany Note” shall mean a promissory note by and among Holdings and each of its Subsidiaries in form and substance reasonably satisfactory to the Lender RepresentativeCollateral Agent.

“Interest Election Request” shall mean a request by the Borrower to convert or continue a Loan in accordance with Section 2.06, substantially in the form of Exhibit D or such other form as is reasonably acceptable to the Administrativeapplicable Agent.

“Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December to occur during any period in which such Loan is outstanding, commencing December 31, 2017, (b) with respect to any Term SOFR Loan, the last day of the Interest Period applicable to the Loan and, in the case of a Term SOFR Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to any Loan, the Maturity Date applicable hereto.

“Interest Period” shall mean, with respect to any Term SOFR Loans, the period commencing on the date of the issuance of such Loans and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, if agreed by all Lenders, twelve months or less than one month) thereafter, as the Borrower may elect; provided, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, (c) no Interest Period shall extend beyond the Maturity Date and (d) at any one time there shall be no more than five different Interest Periods in effect. For purposes hereof, the date of the issuance of a Loan initially shall be the date on which such Loan is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan.

“Investment” shall mean, with respect to any person, any investment by such person in any other person (including Affiliates) in the form of loans, guarantees, advances, or capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such person made in the ordinary course of business for bona fide business purposes, and (b) bona fide Accounts arising in the ordinary course of business), purchases or other acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other person (or of any division or business line of such other person).

The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment, or other amount received by Holdings or a Subsidiary in respect of such Investment (provided that, with respect to amounts received other than in the form of cash or Cash Equivalents, such amount shall be equal to the Fair Market Value of such consideration). An Investment will be deemed to have been made at the time of making any such loans, advance or capital contribution, purchase or other acquisition for consideration of Indebtedness, Equity Interests or other securities.

“Investment Property” shall have the meaning assigned to such term in the Security Agreement.

 

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“ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“Issuing Bank” shall mean, as the context may require, (a) Citibank, N.A. and Royal Bank of Canada; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.02(j) and (k) with respect to Letters of Credit issued by such Lender; and/or (c) collectively, all of the foregoing. Any Issuing Bank may, at its discretion, arrange for one or more Letters of Credit to be issued by one or more Affiliates of such Issuing Bank (and each such Affiliate shall be deemed to be an “Issuing Bank” for all purposes of the Loan Documents). In the event that there is more than one Issuing Bank at any time, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.

“Joinder Agreement” shall mean a joinder agreement substantially in the form of Exhibit E or such other form as is reasonably acceptable to the Lender RepresentativeAdministrative Agent (acting at the direction of the Required Lenders).

“Latest Maturity Date” shall mean, at any time, the latest Maturity Date applicable to any Loan hereunder at such time, including the latest maturity date of any Extended Term Loan, as extended in accordance with this Agreement from time to time.

“LC Commitment” shall mean the commitment of the Issuing Bank to issue Letters of Credit pursuant to Section 2.02.

“LC Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a drawing under a Letter of Credit.

“LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all Reimbursement Obligations outstanding at such time. The LC Exposure of any Revolving Lender at any time shall mean its Pro Rata Percentage of the aggregate LC Exposure at such time.

“LC Extension” shall have the meaning assigned to such term in Section 2.02(c)(i).

“LC Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit (including any and all Letters of Credit for which documents have been presented that have not been honored or dishonored) plus the aggregate of all Unreimbursed Amounts, including all L/C Disbursements. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.13 and Rule 3.14 of the International Standby Practices (ISP98), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time.

“LC Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).

“LC Request” shall mean an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the Issuing Bank in accordance with the terms of Section 2.02(b).

“LC Sublimit” shall mean $25,000,000.

 

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“Leases” shall mean any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property.

“Lender Representative” shall mean, initially and as of the Closing Date and until the earlier of such time as Blackstone Designees cease to constitute Required Lenders or Blackstone has resigned by written notice to the Required Lenders and the Borrower, Blackstone; it being agreed that, upon and following such time, any determination to be made by the Lender Representative hereunder shall be made by the Required Lenders.

“Lenders” shall have the meaning assigned to such term in the preamble hereto.

“LendersLetter of Credit” shall mean (a) the financial institutions that have become a party hereto on the Closing Date and (b) any financial institution that has become a party hereto pursuant to an Assignment and Assumption and in accordance with the terms of this Agreement, other than, in each case, any such financial institution that has ceased to be a party heretoany Standby Letter of Credit in each case issued or to be issued by an Issuing Bank for the account of the Borrower or any Subsidiary thereof pursuant to an Assignment and AssumptionSection 2.02.

“Letter-of-Credit Rights” shall mean “letter of credit rights” as such term is defined in the UCC.

“Letter of Credit Expiration Date” shall mean the date which is not less than five (5) Business Days prior to the Revolving Maturity Date (or, if such date is not a Business Day, the next succeeding Business Day), or such later date to the extent such Letter of Credit has been cash collateralized in an amount equal to 103% of the LC Exposure or backstopped with another letter of credit for the period after the Revolving Maturity Date in a manner to be mutually and reasonably agreed between the applicable Issuing Bank and the Borrower.

“Lien” shall mean, with respect to any property, (a) any mortgage, deed of trust, lien, pledge, encumbrance, claim, charge, collateral assignment, hypothecation, security interest or encumbrance of any kind or any filing of any financing statement under the UCC or any other similar notice of lien under any similar notice or recording statute of any Governmental Authority (other than filings or similar notices which do not evidence a valid lien or which have been filed without authorization), including any easement, right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases whether voluntary or imposed by law; and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such property.

“Limited Condition Acquisition” shall mean any Permitted Acquisition or similar Permitted Investment the consummation of which is not conditioned on the availability of, or on obtaining, third-party financing.

“Limited Condition Transactions” means (1) any Permitted Acquisition or other Investment or similar transaction (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Equity Interests or otherwise), in each case, permitted hereunder by Holdings or one or more of its Subsidiaries whose consummation is not conditioned upon the availability of, or on obtaining, third party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance thereof (which notice, for the avoidance of doubt, may be conditioned upon the occurrence of refinancing or any other transaction), (3) any Restricted Payment and (4) any Asset Sale or other disposition permitted hereunder by Holdings or one or more of its Subsidiaries.

 

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“Limited Conditionality Election” shall have the meaning assigned to such term in Section 1.06.

“Limited Conditionality Test Date” shall have the meaning assigned to such term in Section 1.06.mean with respect to any Limited Condition Transaction, the date of the execution of the agreement, giving of irrevocable notice or declaration with respect to such Limited Condition Transaction.

“Loan Documents” shall mean this Agreement, the Notes, the Agency Fee Letter, the Fee Letter, the Eleventh AmendmentRevolving Agency Fee Letter, the DDTL Fee Letter and the Security Documents.

“Loan Parties” shall mean the Borrower and the Guarantors.

“Loans” shall mean the loans made by the Lenders to the Borrower pursuant to this Agreement.

“Loar Acquisition” shall have the meaning assigned to such term in the third recital hereto.

“Loar Acquisition Agreement” shall have the meaning assigned to such term in the first recital hereto.

“Loar Group” shall have the meaning assigned to such term in the preamble hereto.

“Loar Target” shall have the meaning assigned to such term in the first recital hereto.

“Make-Whole Premium” shall mean, with respect to a Loan at any applicable date prior to the first anniversary of the Closing Date, (a) the present value at the applicable date of (i) the prepayment price of such Loan on the first anniversary of the Closing Date plus (ii) all required remaining scheduled interest payments due on such Loan to the first anniversary of the Closing Date (assuming that the rate of interest will be equal to the rate of interest in effect on the date of notice of prepayment), other than accrued but unpaid interest to such prepayment date, computed using a discount rate equal to the Treasury Rate plus 50 basis points per annum discounted on a semi-annual bond equivalent basis, over (b) the principal amount of such Loan at the applicable date.

“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of common Equity Interests of Holdings or any direct or indirect parent of Holdings on the date of declaration of the relevant dividend multiplied by (ii) the arithmetic mean of the closing price per share of such common Equity Interests on the applicable exchange for the 30 consecutive trading days immediately preceding the date of declaration of such dividend

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

“Master Agreement” shall have the meaning assigned to such term in the definition of “Hedging Agreement”.

 

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“Material Adverse Effect” shall mean a material adverse effect on (a) the business, assets, financial condition or results of operations, in each case, of Holdings and its Subsidiaries, taken as a whole; (b) the ability of the Loan Parties (taken as a whole) to perform any of their payment obligations under any Loan Document; or (c) the rights of or benefits or remedies (taken as a whole) available to the Lenders or the Collateral Agent under the Loan Documents (taken as a whole).

“Material Indebtedness” shall mean any Indebtedness (other than the Loans or Hedging Obligations) of Holdings or any of its Subsidiaries in an aggregate outstanding principal amount exceeding the greater of (i) $3,500,00024,000,000 and (ii) 20.0% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis); provided that the Indebtedness under the GE Capital Lease shall not constitute Material Indebtedness hereunder to the extent the early termination of the GE Capital Lease could not reasonably be expected to result in a Material Adverse Effect.

“Material Intellectual Property” means any Intellectual Property that (a) is owned by Holdings or any of its Subsidiaries that is not an Excluded Subsidiary and (b) is material to the business of Holdings and its Subsidiaries (taken as a whole).

“Maturity Date” shall mean, (a) with respect to the Initial Term Loans, and any Delayed Draw Term Loans and the Eleventh Amendment Incremental Term Loans (other than Extended Term Loans), April 2, 2026May 10, 2030 (the “Term Loan Maturity Date”); (b) with respect to the Revolving Credit Commitments and any Revolving Credit Loans, April 2, 2025May 10, 2029 (the “Revolving Maturity Date”); (c) with respect to any Incremental Term Loans, Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans the final maturity date as specified in the applicable Incremental Amendment; and (d) with respect to any Extended Term Loans and Extended Revolving Credit Commitments, the final maturity date as specified in the applicable Extension Amendment; provided that, in each case, if such day is not a Business Day, the Maturity Date shall be the Business Day immediately preceding such day.

“Maverick Earn-out” shall mean the future payment(s) of existing earn-out obligations incurred in connection with the acquisition of Maverick Molding Co., an Ohio corporation.

“Maximum Rate” shall have the meaning assigned to such term in Section 10.14.

“Minimum Cure Condition” shall have the meaning assigned to such term in Section 8.04.

“Minimum Borrowing Amount” shall mean:

(a) in the case of Term SOFR Loans that are Initial Term Loans, $500,000;

(b) in the case of Term SOFR Loans that are Revolving Credit Loans, $100,000;

(c) in the case of Term SOFR Loans that are Delayed Draw Term Loans, $1,000,000;

(d) in the case of ABR Loans that are Initial Term Loans, $500,000;

(e) in the case of ABR Loans that are Revolving Credit Loans, the lesser of $100,000 and the Revolving Credit Commitment at such time; and

(f) in the case of ABR Loans that are Delayed Draw Term Loans, $1,000,000.

 

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“Mortgage” shall mean an agreement, including, but not limited to, a mortgage, deed of trust, assignment of leases and rents or any other document, creating and evidencing a Lien on a Mortgaged Property, which shall be substantially in the form reasonably satisfactory to the Lender RepresentativeCollateral Agent, in each case, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or as shall be customary under applicable local law.

“Mortgaged Property” shall mean (a) each owned Real Property identified as a Mortgaged Property on Schedule 3(b) to the Perfection Certificate dated as of the Closing Date and (b) each owned Real Property located in the United States, if any, which shall be subject to a Mortgage delivered after the Closing Date pursuant to Section 5.10.

“Multiemployer Plan” shall mean a multiemployer plan within the meaning of Section 4001(a)(3) or Section 3(37) of ERISA (a) to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions; or (b) to which any Loan Party or any ERISA Affiliate has within the preceding six plan years made contributions and with respect to which any Loan Party or any ERISA Affiliate has any ongoing obligation or could reasonably be expected to incur liability.

“Net Asset Determination” shall have the meaning assigned to such term in Section 7.12(b)(vi)(F).

“Net Cash Proceeds” shall mean an amount equal to:

(a) with respect to any Asset Sale, the cash proceeds received by Holdings or any of its Subsidiaries (including cash proceeds subsequently received (as and when received by Holdings or any of its Subsidiaries) in respect of non-cash consideration initially received) net of (i) (A) reasonable and customary expenses paid or payable in connection with such sale by Holdings, any of its Subsidiaries or any of its direct or indirect parent companies to third parties who are not Affiliates of Holdings, including brokers’ fees or commissions, legal, accounting and other professional and transactional fees and (B) transfer and similar Taxes and Holdings’ good faith estimate of Taxes paid or payable in connection with such sale by Holdings, any of its Subsidiaries or any of its direct or indirect parent companies (and, without duplication, any Permitted Tax Distributions, pursuant to Section 6.07(b)(vi) to the extent paid or payable in connection with such sale); (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by Holdings or any of its Subsidiaries associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds); (iii) Holdings’ good faith estimate of payments required to be made with respect to unassumed liabilities relating to the properties sold within one (1) year of such Asset Sale (provided that, to the extent such cash proceeds are not used to make payments in respect of such unassumed liabilities within one (1) year of such Asset Sale, such cash proceeds shall constitute Net Cash Proceeds); (iv) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under the Loan Documents at the time of such sale) and which is repaid with such proceeds (other than (A) any such Indebtedness assumed by the purchaser of such properties and (B) the Loans); and (v) in the case of any Asset Sale by a non-Wholly-Owned Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (v)) attributable to minority interests and not available for distribution to or for the account of Holdings or a Wholly-Owned Subsidiary as a result thereof; and (vi) that are not applied or invested as provided in Section 2.09(b)(vi); provided that (a) no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such net cash proceeds shall exceed the greater of (I) $12,000,000 and (ii) 10.0% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis) and (b) no

 

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net cash proceeds with respect to any other Asset Sale or Casualty Event not excluded from the requirements of this proviso shall constitute Net Cash Proceeds under this proviso in any fiscal year until the aggregate amount of all such net cash proceeds in such fiscal year shall exceed the greater of (I) $24,000,000 and (ii) 20.0% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis) (and thereafter only net cash proceeds in excess of such amount shall constitute Net Cash Proceeds under this proviso);

(b) with respect to any issuance or sale of Equity Interests or Debt Issuance by Holdings or any of its Subsidiaries, the cash proceeds thereof, net of reasonable and customary fees, commissions, costs and other expenses incurred in connection therewith to third parties who are not Affiliates of Holdings; and

(c) with respect to any Casualty Event, the cash insurance proceeds, cash condemnation awards and other cash compensation received in respect thereof, net of (i) all reasonable and customary costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event; and (ii) in the case of any Casualty Event of a non-Wholly-Owned Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (ii)) attributable to minority interests and not available for distribution to or for the account of Holdings or a Wholly-Owned Subsidiary as a result thereof.

“Ninth Amendment” shall mean that certain Ninth Amendment to Credit Agreement, dated as of the Ninth Amendment Effective Date, by and among the Borrower, Holdings, the Guarantors party thereto, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

“Ninth Amendment Delayed Draw Term Loan Commitment Increase” shall have the meaning assigned to such term in the definition of “Delayed Draw Term Loan Commitment”.

“Ninth Amendment Effective Date” shall mean April 1, 2022.

“Non-Consenting Lender” shall mean any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders of the applicable Class or Classes in accordance with the terms of Section 10.02 and (b) has been approved by the Required Lenders.

“Non-Finance Lease Obligation” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP (for the avoidance of doubt, subject to Section 1.04), is not and is not required to be accounted for as a capital lease or finance lease on the balance sheet of that Person. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Finance Lease Obligation.

“Notes” shall mean any notes evidencing the Commitments under, or the Loans issued pursuant to, this Agreement, substantially in the form of Exhibit F or such other form as is reasonably acceptable to the Administrativeapplicable Agent.

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

“Obligations” shall mean (a) obligations of Holdings, the Borrower and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, each payment required to be made by the Borrower and the other Loan Parties under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of Reimbursement Obligations with respect to Letters of Credit, interest thereon and obligations to

 

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provide cash collateral with respect thereto and (iiiii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Holdings, the Borrower and the other Loan Parties under this Agreement, the other Loan Documents, Secured Cash Management Agreements and Secured Hedging Agreements, and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of Holdings, the Borrower and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Obligations shall not include the Excluded Swap Obligations.

“OFAC” shall mean the United States Department of Treasury’s Office of Foreign Assets Control.

“Officer’s Certificate” shall mean a certificate executed by a Responsible Officer in his or her official (and not individual) capacity.

“Open Market Purchase Expiry Date” has the meaning assigned to such term in Section 10.04(g).

“Organizational Documents” shall mean, with respect to any person, (a) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such person, (d) in the case of any general partnership, the partnership agreement (or similar document) of such person and (e) in any other case, the functional equivalent of the foregoing, including without limitation, in the case of any entity incorporated or established in Germany, a commercial register extract (Handelsregisterauszug), its articles of association or partnership agreement (Satzung oder Gesellschaftsvertrag), any by-laws (Geschäftsordnung) and a list of shareholders (Gesellschafterliste).

“Other Taxes” shall mean all present or future stamp, court or documentary Taxes or any other excise, intangible, recording, filing, property or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are described in clause (a)(ii) of the definition of Excluded Taxes imposed with respect to an assignment, grant of a participation, designation of a different lending office or other transfer (other than an assignment, grant of a participation, designation of a different lending office or other transfer made pursuant to Section 2.15).

“Over-Cure Amount” shall have the meaning set forth in Section 8.04.

“Paid in Full” shall mean the payment in full in cash of (x) the Obligations (other than obligations pursuant to Secured Hedging Agreements and Secured Cash Management Agreements and inchoate or contingent or reimbursable obligations for which no claim has been asserted), (y) the Guaranteed Obligations (other than obligations pursuant to Secured Hedging Agreements and Secured Cash Management Agreements, except to the extent an event of default has occurred thereunder and Section 8.03 is then applicable, and inchoate or contingent or reimbursable obligations for which no claim has been asserted) or (z) the Secured Obligations (as defined in the Security Agreement) (other than obligations pursuant to Secured Hedging Agreements and Secured Cash Management Agreements, except to the extent an event of default has occurred thereunder and Section 8.03 is then applicable, and inchoate or contingent or reimbursable obligations for which no claim has been asserted), as applicable. “Payment in Full” shall have a meaning correlative thereto.

 

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“Parallel Debt” shall have the meaning assigned to such term in Section 9.17(b).

“Parent” shall mean Loar Acquisition 13, LLC, a Delaware limited liability company and parent company of Holdings.

“Parent LLC AgreementCompany” shall mean the Amended and Restated Limited Liability Company Agreement of the Parentany Person of which the Borrower is a direct or indirect Subsidiary.

“Participant” shall have the meaning assigned to such term in Section 10.04(c).

“Participant Register” shall have the meaning assigned to such term in Section 10.04(c).

“Paycheck Protection Program” shall mean the Paycheck Protection Program, Section 1102 of Title I of the Coronavirus Aid, Relief, and Economic Security Act, as the same may be amended from time to time, and the rules and regulations promulgated thereunder.

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“PCBs” shall have the meaning assigned to such term in the definition of “Hazardous Materials.”

“Perfection Certificate” shall mean a certificate substantially in the form of Exhibit G-1 or any other form approved by the Lender RepresentativeCollateral Agent, executed by the Borrower and each Guarantor, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

“Perfection Certificate Supplement” shall mean a certificate supplement substantially in the form of Exhibit G-2 or any other form approved by the Lender RepresentativeCollateral Agent.

“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

“Permitted Acquisition” shall mean any Acquisition to the extent that:

(i) such Acquisition shall not be hostile and shall have been approved by the Board of Directors (or other similar body) and/or the stockholders or other equityholders of the Target;

(i) (ii) no Event of Default under SectionSections 8.01(a) or (b) or Event of Default exists or has occurred and is continuing or would result after giving effect to such Acquisition; provided, that in connection with a Permitted Acquisition that constitutes a Limited Condition Acquisition, the condition under this clause (ii) shall be that (x) no Default under Section 8.01(a) or (b) or Event of Default shall have occurred at the time the definitive documentation relating to such Limited Condition Acquisition is executed and (y) no Event of Default pursuant to Section 8.01(a), (b), (g) or (h) has, with respect to the Borrower, Sections 8.01(g) or (h) shall have occurred and isbe continuing at the time the relevant Limited Condition Acquisition is consummated;

 

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(iii) the Administrative Agent and the Lender Representative shall receive not less than five Business Days’ (or such shorter period as determined in the sole discretion of the Lender Representative) prior to the consummation of such Acquisition written notice thereof, which notice shall include a reasonably detailed description of the material proposed terms of such Acquisition and identify the anticipated closing date thereof;

(iv) with respect to any Acquisition involving Acquired EBITDA greater than 10.0% of Consolidated EBITDA determined on a Pro Forma Basis for the most recent Test Period, the Administrative Agent and the Lender Representative shall receive, not less than five (5) Business Days’ (or such shorter period as determined in the sole discretion of the Lender Representative) prior to the consummation of such Acquisition, (A) a customary business due diligence package and legal due diligence memos, in each case, to the extent available to any Loan Party or any Subsidiary and, in the case of legal due diligence memos, subject to execution by the Administrative Agent and the Lender Representative of customary confidentiality and non-reliance agreements; (B) pro forma financial projections (after giving effect to such Acquisition) for Holdings and its Subsidiaries for the current and next fiscal year; (C) appraisals, to the extent available to any Loan Party or any Subsidiary (provided, that for the avoidance of doubt, any such Loan Party or Subsidiary shall not be obligated to obtain any appraisals); and (D) copies of the drafts of the acquisition agreement and other material documents relating to the proposed Acquisition;

(v) the Administrative Agent and Lenders shall receive, to the extent available to any Loan Party, historical financial statements of the applicable Target for the two fiscal years prior to such Acquisition (or, if such Target (or its predecessor entity) has not been in existence for two years, for each year such Target (or its predecessor entity) has existed);

(ii) (vi) the aggregate consideration paid directly or indirectlyamount of Investments made by Loan Parties in connection with Targets that do not become, and assets that will not be held by, Loan Parties shall not exceed, for all Acquisitions in the aggregate, the sumgreater of (A) $30,000,000, plus (B) solely to the extent the Total Net Leverage Ratio (after giving effect to such Acquisition and the Incurrence of any Indebtedness in connection therewith on a Pro Forma Basis) for the four fiscal quarters most recently ended prior to the consummation of such Acquisition for which financial statements are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, does not exceed 6.00 to 1.00, as certified in an Officer’s Certificate executed by a Financial Officer of the Borrower, (1) the Cash Equivalent proceeds of any substantially concurrent issuance of Equity Interests of Holdings (or any direct or indirect parent thereof) not constituting Disqualified Capital Stock (including upon exercise of warrants or options) which proceeds (if in respect of any Equity Interests of a direct or indirect parent) have been contributed as common equity to the capital of Holdings, plus (2) the aggregate amount of substantially concurrent contributions to the common capital of Holdings received in Cash Equivalents; provided that, with respect to the proposed acquisition disclosed to the Lenders as “Project Charge”, this clause (vi) shall not apply;60,000,000 and 50.0% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis); and

(vii) such Acquisition shall only involve Targets engaged in, or assets used or useful in, a business of the type permitted to be engaged in by the Companies pursuant to Section 6.05;

(iii)(viii) with respect to such Acquisition, the Loan Parties shall comply with the requirements of Section 5.10, to the extent applicable;

 

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(ix) the Total Net Leverage Ratio (after giving effect to such Acquisition and the Incurrence of any Indebtedness in connection therewith on a Pro Forma Basis) for the four fiscal quarters most recently ended prior to the consummation of such Acquisition for which financial statements are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, based on the combined operating results of the applicable Target and of Holdings and its Subsidiaries for such four fiscal quarter period, does not exceed 6.50 to 1.00, as certified in an Officer’s Certificate executed by a Financial Officer of the Borrower;

(x) to the extent such Acquisition is funded (in whole or in part) with the proceeds of any Revolving Credit Loans, the Revolving Credit Availability Condition shall be satisfied (after giving effect to such Acquisition and the Incurrence of any Indebtedness in connection therewith on a Pro Forma Basis); and

provided that, notwithstanding the foregoing provisions of this definition, the Schroth Acquisition shall be deemed to be a Permitted Acquisition.

“Permitted Holder” shall mean any of the Closing Date Investors and any of their respective Affiliates (other than any portfolio companies).

“Permitted Investment” shall mean any of the following Investments by Holdings or any of its Subsidiaries:

(a) Investments (i) in Holdings or any Subsidiary that is a Loan Party, (ii) by a Subsidiary that is not a Loan Party in a Subsidiary that is not a Loan Party and (iii) by a Loan Party in a Subsidiary that is not a Loan Party in an aggregate amount not to exceed, together with the aggregate outstanding principal amount of any Indebtedness owing from a Subsidiary that is not a Guarantor to a Loan Party pursuant to Section 6.01(k)(iii), $5,000,000; provided that the aggregate amount of such Investments by Loan Parties in Subsidiaries that are not Loan Parties shall not exceed the greater of $60,000,000 and 50.0% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time;

 

(b)

a Permitted Acquisition;

 

(c)

cash and Cash Equivalents;

 

(d)

extensions of trade credit or accounts receivable credit in the ordinary course of business;

(e) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;

(f) loans and advances in the ordinary course of business to the employees, officers and members of management of Holdings or any of its Subsidiaries, so long as the aggregate principal amount of all such loans and advances not repaid in cash at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed the greater of $500,00012,000,000 and 10% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis);

 

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(g) any person to the extent such Investment represents the non-cash portion of the consideration received for an Asset Sale as permitted pursuant to Section 6.04 or any other asset disposition not otherwise prohibited hereunder;

(h) Investments in the form of notes issued by officers, directors and employees of Holdings or any Subsidiary for the sole purpose of purchasing Equity Interests of Holdings or any parent entity thereof;

(i) Investments arising from Hedging Agreements entered into in the ordinary course of business by Holdings or any of its Subsidiaries and not for the purpose of speculation;

(j) any Investment listed on Schedule 6.07(a) and any extension, modification, replacement or renewal of any such Investments existing on the ClosingFifteenth Amendment Effective Date, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the ClosingFifteenth Amendment Effective Date;

(k) guarantees of Indebtedness permitted under Section 6.01 and performance guarantees and Contingent Obligations incurred in the ordinary course of business;

(l) (i) bank deposits in the ordinary course of business; and (ii) the endorsement of instruments for collection or deposit in the ordinary course of business;

(m) increases in Investments reflecting an increase in the value of the Investments;

(n) any Loan Party may capitalize or forgive any debt owed to it by any other Loan Party;

(o) other Investments in an aggregate amount not exceeding at any time outstanding (i)the greater of $5,000,000, plus (ii) solely to the extent the Total Net Leverage Ratio (after giving effect to such Investment and the Incurrence of any Indebtedness in connection therewith on a Pro Forma Basis) for the four fiscal quarters most recently ended prior to the consummation of such Investment for which financial statements are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, does not exceed 6.00 to 1.00, as certified in an Officer’s Certificate executed by a Financial Officer of the Borrower, (1) the Cash Equivalent proceeds of any substantially concurrent issuance of Equity Interests of Holdings (or any direct or indirect parent thereof) not constituting Disqualified Capital Stock (including upon exercise of warrants or options) which proceeds (if in respect of any Equity Interests of a direct or indirect parent) have been contributed as common equity to the capital of Holdings, plus (2) the aggregate amount of substantially concurrent contributions to the common capital of Holdings received in Cash Equivalents;60,000,000 and 50% of Consolidated EBITDA of Holdings and its Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis);

(p) Investments in the form of intercompany Indebtedness permitted pursuant to Section 6.01(k); and

(q) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations, of and other disputes with, customers and suppliers arising in the ordinary course of business.;

 

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(r) Investments in an aggregate amount not to exceed the Cumulative Amount, so long as in respect of Investments made using clause (b) of the Cumulative Amount only, no Specified Event of Default shall have occurred and be continuing or would otherwise result therefrom; and

(s) any Investments if (x) no Specified Event of Default shall have occurred and be continuing or would otherwise result therefrom and (y) on a Pro Forma Basis after giving effect to such Investment, the Total Net Leverage Ratio would be equal to or less than 5.50 to 1.00 as of the last day of the most recently ended Test Period.

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

“Permitted Revolving Credit Facility” shall mean a senior secured revolving credit facility of the Borrower entered into after the Closing Date with third party revolving credit lenders reasonably acceptable to the Lender Representative, with commitments in an aggregate principal amount of up to $20,000,000, on terms and conditions reasonably satisfactory to the Lender Representative; provided that, (a) in connection with the effectiveness of any such revolving credit facility, the Revolving Credit Commitments hereunder shall have been terminated, and all Revolving Credit Loans and other Obligations related thereto shall have been repaid, (b) the Loan Parties shall have entered into any amendments to the Loan Documents or other documentation reasonably requested by the Administrative Agent, the Collateral Agent and the Lender Representative to ensure that the Obligations have the benefit of the same guarantees and the same collateral, and subject to the terms of the applicable Permitted Revolving Credit Facility Intercreditor Agreement, substantially the same enforcement rights with respect thereto, as the obligations under such revolving credit facility and (c) a Permitted Revolving Credit Facility Intercreditor Agreement shall have been executed and delivered.

“Permitted Revolving Credit Facility Intercreditor Agreement” shall mean an intercreditor agreement in form and substance reasonably satisfactory to the Lender Representative, entered into between the Administrative Agent, the Collateral Agent and the administrative agent and collateral agent under the Permitted Revolving Credit Facility, and acknowledged by the Loan Parties.

“Permitted Tax Distributions” shall mean, for any taxable period (or portion thereof) that Holdings (or any other person of which Borrower is a direct or indirect wholly owned Subsidiary) is treated as a corporation for U.S. federal income tax purposes and for which Borrower and/or any of its Subsidiaries are members (or are pass-through entities of such members) of a consolidated, combined, unitary or similar income Tax group for U.S. federal, state, local or foreign income Tax purposes for which Holdings (or such other person of which Borrower is a direct or indirect wholly owned Subsidiary) is the common parent, the Borrower may make Restricted Payments to, or on behalf of, Holdings (or such other person) to pay the portion of any U.S. federal, state, local or foreign income Taxes (as applicable) of Holdings (or such other person) shown to be due (or estimated to be due) on the applicable consolidated, combined, unitary or similar income Tax Return for such taxable period that are attributable to the income of the Borrower and/or its applicable Subsidiaries; provided that (i) allowable loss carryovers, credits and offsets against Taxes shall, without limitation, be taken into account in computing Taxes due for all purposes under this definition and (ii) the aggregate amount of such distributions shall not exceed the aggregate Taxes the Borrower and/or its Subsidiaries, as applicable, would be required to pay in respect of such U.S. federal, state, local and foreign Taxes onas a stand-alone basisconsolidated, combined, unitary or similar Tax group for such taxable period. After the end of each taxable year, if the distributions paid to Holdings (or such other person) pursuant to this definition for such taxable year exceeds the amount of distributions permitted pursuant to this definition for such taxable year, any such excess shall reduce any Permitted Tax Distributions paid to Holdings (or such other person) by the Borrower in the following taxable year, but only to the extent such excess is not taken into account in computing the amount of the Permitted Tax Distributions for such year pursuant to clause (i) of this definition.

 

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“Person” or “person” shall mean any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“PIK Election” shall have the meaning assigned to such term in Section 2.06(f).

“PIK Interest” shall have the meaning assigned to such term in Section 2.06(f).

“Plan” shall mean any “employee pension benefit plan” (other than a Multiemployer Plan) subject to the provisions of Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code which is maintained, sponsored, contributed to, or required to be contributed to by any Loan Party or its ERISA Affiliate or with respect to which any Loan Party could reasonably be expected to incur liability.

“PPR” means Pacific Piston Ring Co., Inc., a California corporation.

“PPR Acquisition” means the acquisition by the Borrower of 100% of the Equity Interests of PPR pursuant to the PPR Purchase Agreement.

“PPR Acquisition Equity Contribution” means the equity contribution to be provided by the Closing Date Investors or other investors reasonably satisfactory to the Lender Representative in Holdings or its direct or indirect parent company of at least $44,000,000 (as adjusted in accordance with clause (ii) of the definition of “PPR Purchase Agreement Prohibited Amendment”), with all of such equity investment to be made in cash in exchange for common Equity Interests, the cash proceeds of which shall be applied to consummate the PPR Acquisition.

“PPR Purchase Agreement” means that certain Stock Purchase Agreement, dated as of the Fifth Amendment Effective Date, by and among the Borrower, PPR, the shareholders of PPR party thereto and the Shareholder Representative identified therein, as amended, supplemented, modified or restated from time to time.

“PPR Purchase Agreement Prohibited Amendment” means, with respect to the PPR Purchase Agreement, any modifications, amendments or express waivers or consents thereto that are adverse in any material respect to the Lenders in their capacities as such without the consent of the Lender Representative (it being understood and agreed that (i) any change to the definition of “Material Adverse Effect” contained in the PPR Purchase Agreement shall be deemed to be materially adverse to the Lenders and (ii) any increase or reduction in the purchase price shall be deemed not to be materially adverse to the Lenders if, (x) in the case of any increase in the purchase price, such increase shall be funded solely with an increase in the PPR Acquisition Equity Contribution, or (y) in the case of any decrease in the purchase price, (1) such decrease shall not exceed $8,200,000 and (2) 50% of such purchase price decrease is allocated to reduce the PPR Acquisition Equity Investment and 50% of such purchase price decrease is allocated to permanently reduce the Delayed Draw Term Loan Commitment, provided, further, that in the case of clause (ii), working capital adjustments, purchase price adjustments and other similar adjustments set forth in the PPR Purchase Agreement shall be deemed not to be either an increase or a decrease to the purchase price).

“Premises” shall have the meaning assigned thereto in the applicable Mortgage.

“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” shall mean, as to any Person, for any events as described below that occur subsequent to the commencement of a period for which the effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation will give pro forma effect to such events as if such events occurred on the first day of the four consecutive fiscal quarter period ended on or before the occurrence of

 

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such event (the “Reference Period”): (a) in making any determination of Consolidated EBITDA or any component thereof, effect shall be given to (i) any Specified Transaction or restructurings of the business of Holdings or any of the Subsidiaries and (ii) any “run-rate” synergies, operating improvements or cost savings, in each case, that occurred during the Reference Period or with respect to any event or transaction included in clauses (a) and (b) of the definition of Specified Transactions, “run-rate” synergies, operating improvements or cost savings that are expected to occur no later than twelve months after the last day of the Reference Periodthe amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to result from, or relating to, any Specified Transaction (including, for the avoidance of doubt, acquisitions and investments occurring prior to the Fifteenth Amendment Effective Date) which is being given pro forma effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings, operating improvementsexpense reductions and synergies had been realized in full on the first day of such Reference Periodperiod and as if such cost savings, operating expense reductions and synergies were realized in full during the entirety of such period, and “run-raterun-rate” means the full recurring projected benefitbenefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings or other benefits expected to result from the elimination of a public target’s Public Company Costs)compliance costs with public company requirements), whether prior to or following the Fifteenth Amendment Effective Date , net of the amount of actual savings or other benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of anysuch financial ratios or tests (and in respect of any subsequent pro forma calculations in which such Specified Transaction is given pro forma effect) and during any applicable subsequent ReferenceTest Period in which the effects thereof are expected to be realized) relating to such Specified Transaction, provided, that Holdings determines; provided that (a) such amounts are reasonably identifiable, (b) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than twenty-four (24) months after the date of such Specified Transaction (or actions undertaken or implemented prior to the consummation of such Specified Transaction), (c) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period; provided that such “run-rate”synergies, operating improvements and cost savings are reasonable and are factually supportable as set forth in a certificate signed by a Financial Officer and delivered to the Administrative Agent and the Lender Representative, synergies and operating expense reductions added back pursuant to this clause (ii) in any Test Period, when aggregated with the amount of any increase for such period in Consolidated EBITDA as a result of any “run-rate” cost savings, synergies and operating expense reductions pursuant to clause (s) of the definition of “Consolidated EBITDA”, shall not exceed in the aggregate 30.0% of Consolidated EBITDA for such period (as calculated after giving effect to any such “run rate” adjustments); (b) in making any determination on a Pro Forma Basis, or Pro Forma Compliance or of Pro Forma Effect, (i) all Indebtedness (including Indebtedness issued, incurred or assumed as a result of, or to finance, any relevant transactions and for which the financial effect is being calculated, whether incurred under the Loan Documents or otherwise) issued, incurred, assumed or repaid (in each case, other than Indebtedness incurred or repaid under any revolving credit facility or line of credit in the ordinary course of business for working capital purposes) during the Reference Period (or with respect to Indebtedness repaid, during the Reference Period or subsequent to the end of the Reference Period and prior to, or simultaneously with, the event for which the calculation of any such ratio is made) shall be deemed to have been issued, incurred, assumed or repaid at the beginning of such period and (ii) interest expense of such Person attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding clause (i), bearing floating interest rates shall be computed on a pro forma basis as if the rates that would have been in effect during the period for which pro forma effect is being given had

 

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been actually in effect during such periods, and (c) notwithstanding anything to the contrary in this definition or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the asset sale, transfer, disposition or lease thereof has been entered into as discontinued operations, no Pro Forma Effect shall be given to the classification thereof as discontinued operations (and the Consolidated EBITDA or any component thereof attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such asset sale, transfer, disposition or lease shall have been consummated. If since the beginning of any applicable Reference Period any Person that subsequently became a Subsidiary of Holdings, or was merged, or consolidated with or into a Subsidiary of Holdings since the beginning of such Reference Period, shall have made any Specified Transaction that would have required adjustment pursuant to this definition, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this definition.

Notwithstanding the foregoing, any amounts added to Consolidated EBITDA pursuant to clause (a)(ii) of this definition shall be limited to 10% of Consolidated EBITDA determined on a Pro Forma Basis in the aggregate for any Test Period (calculated before giving effect to any such add-backs) and (a) shall have been realized or (b) shall be reasonably expected to be realizable within twelve months of the date such actions are taken or are expected to be taken; provided that (i) any pro forma adjustments made pursuant to this sentence shall be set forth in a certificate signed by a Financial Officer and delivered to the Administrative Agent and the Lender Representative that certifies that such synergies, operating improvements, cost savings or restructurings meet the criteria set forth in this definition, (ii) such synergies, operating improvements or cost savings are expected to have a continuing impact and are reasonably identifiable and quantifiable and (iii) no synergies, operating improvements or cost savings shall be given pro forma effect to the extent duplicative of any expenses or charges relating to such synergies, operating improvements, cost savings or restructurings that are added back pursuant to the definition of Consolidated EBITDA.

“Projections” shall have the meaning assigned to such term in Section 3.04(c).

“Properties” shall have the meaning assigned to such term in Section 3.17(a)(i).

“property” shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests or other ownership interests of any person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property.

“Pro Rata Percentage” of any Revolving Lender at any time shall mean the percentage of the total Revolving Credit Commitments of all Revolving Lenders represented by such Lender’s Revolving Credit Commitment; provided that for purposes of Section 2.02(d), “Pro Rata Percentage” shall mean the percentage of the total Revolving Credit Commitments (disregarding the Revolving Credit Commitment of any Defaulting Lender to the extent its LC Exposure is reallocated to the non-Defaulting Lenders) represented by such Lender’s Revolving Credit Commitment. If the Revolving Credit Commitments have terminated or expired, the Pro Rata Percentage shall be determined based upon the Revolving Credit Commitments most recently in effect, after giving effect to any assignments.

“Public Company Costs” shall mean, as to any Person, reasonable costs associated with compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act and the Exchange Act or any other comparable body of laws, rules or regulations, as applicable to companies with equity securities held by the public, the rules of national securities exchange companies with listed equity, as to directors’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising solely by virtue of the listing of such Person’s equity securities on a national securities exchange.

 

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“Purchase Money Obligation” shall mean, for any person, the obligations of such person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any property or the cost of installation, construction or improvement of any property and any refinancing thereof; provided, however, that (a) such Indebtedness is incurred no later than 270 days after such acquisition, installation, construction or improvement of such property by such person and (b) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction or improvement, as the case may be.

“Qualified Capital Stock” of any person shall mean any Equity Interests of such person that are not Disqualified Capital Stock.

“Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Ratio Debt” shall have the meaning assigned to such term in Section 6.01(x).

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

“Receivables Assets” shall mean (a) any accounts receivable owed to Holdings or any Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable, any deposit accounts into which payments of such accounts receivable are made by counterparties and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged in connection with a Receivables Facility.

“Receivables Facility” shall mean any of one or more receivables financing facilities (and any guarantee of such financing facility), the obligations of which are non-recourse (except for customary representations, warranties, covenants, and indemnities made in connection with such facilities) to Holdings and the Subsidiaries pursuant to which Holdings or any Subsidiary sells, directly or indirectly, grants a security interest in or otherwise transfers its Receivables Assets to a Person that is not Holdings or a Subsidiary.

“Refinancing Indebtedness” shall mean refinancings, renewals, or extensions of Indebtedness so long as: (a) the terms and conditions (other than pricing and premiums, so long as such pricing and premiums (including related fees) are on market terms consistent with financings of that nature) of such refinancings, renewals, or extensions (taken as a whole) are not materially more onerous to Holdings and its Subsidiaries taken as a whole than the terms and conditions of the Indebtedness being refinanced;

 

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(b) such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, or extended, plus the amount of any unused commitments thereunder to the extent available to be drawn on the date of such refinancing, renewal or extension (other than attributable to the accretion of original issue discount, interest, capitalization of interest or payment premiums in respect of the Indebtedness being refinanced and reasonable and customary fees, costs andunder the refinanced Indebtedness and any accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under the refinanced Indebtedness, and underwriting discounts, fees, commissions and expenses related thereto (including original issue discount and, upfront fees)) and similar items) in connection with the refinancing of the applicable Indebtedness and the incurrence or issuance of the applicable Refinancing Indebtedness; (c) such refinancings, renewals, or extensions (other than any refinancing, renewal or extension of any Purchase Money Obligations or Capital Lease Obligations) do not have a shorter Weighted Average Life to Maturity than the Weighted Average Life to Maturity of the Indebtedness so refinanced, renewed, or extended; (d) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are, taken as a whole, at least as favorable to the Lenders as those that were applicable to the refinanced, renewed, or extended Indebtedness; and (e) the refinancing, renewal or extension is nonrecourse to any Loan Party other than any Loan Parties which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended.

“Register” shall have the meaning assigned to such term in Section 10.04(b).

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

“Regulation S-X” shall mean Regulation S-X promulgated under the Securities Act.

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

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

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

“Reimbursement Obligations” shall mean the Borrower’s obligations under Section 2.02(e) to reimburse LC Disbursements.

“Reinvestment Notice” shall mean a written notice executed by a Responsible Officer of the Borrower stating (a) that no Default or Event of Default has occurred and is continuing at the time of delivery of such Reinvestment Notice and (b) that Holdings (through one of its Subsidiaries) intends and expects to use all or a specified portion of the Net Cash Proceeds subject to such notice to make Capital Expenditures or to acquire replacement assets or assets that will be useful in the business of Holdings or any Subsidiary thereof.

“Rejection Notice” shall have the meaning assigned to such term in Section 2.09)(d).

“Related Parties” shall mean, with respect to any person, such person’s Affiliates and the partners, directors, officers, employees, agents, controlling persons, advisors and sub-advisors of such person and of such person’s Affiliates.

 

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