lndc-20201231
FALSE000100528600010052862020-06-012020-08-30

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 31, 2020
 
LANDEC CORPORATION
(Exact name of registrant as specified in its charter)
  

Delaware
000-2744694-3025618
(State or other jurisdiction of incorporation)
(Commission File Number)(IRS Employer Identification No.)

   2811 Airpark Drive
 Santa Maria,
California
93455
(Address of principal executive offices)(Zip Code)

(650) 306-1650
(Registrant’s telephone number, including area code)
 
Not Applicable
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each classTrading Symbol(s)Name of each exchange on which registered
Common Stock, par value $.001 per share
LNDCThe NASDAQ Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  





Item 1.01 Entry into a Material Definitive Agreement.

On December 31, 2020, Landec Corporation (the “Company”), Curation Foods, Inc. (“Curation”) and Lifecore Biomedical, Inc. (“Lifecore”), as borrowers, and certain of the Company’s other subsidiaries, as guarantors, entered into (i) that certain credit and guaranty agreement (the “Term Loan Credit Agreement”), dated December 31, 2020, with Goldman Sachs Specialty Lending Group, L.P. (“Goldman Sachs”), as lender, administrative agent and collateral agent, and certain affiliates of Guggenheim Credit Services, LLC, as lenders, and (ii) that certain credit agreement (the “Revolver Credit Agreement” and, together with the Term Loan Credit Agreement, the “New Credit Agreements”), dated December 31, 2020, with BMO Harris Bank N.A. (“BMO”) as lender and administrative agent. The New Credit Agreements refinanced in full all obligations of the Company and its subsidiaries under the Company’s existing credit agreement, dated September 23, 2016, as amended, with JPMorgan Chase Bank, N.A., BMO and City National Bank, as lenders.

General Terms

The Term Loan Credit Agreement provides for up to $170.0 million in total term loan borrowings, consisting of an initial $150.0 million tranche funded in full at closing and a $20.0 million multi-draw delayed term loan tranche available for borrowing until December 31, 2022, subject to, among other conditions, satisfaction of certain pro forma leverage ratios that are further described in the Term Loan Credit Agreement. The obligations under the Term Loan Credit Agreement mature on December 31, 2025.

The Revolver Credit Agreement provides for up to the lesser of (i) $75.0 million less a reserve for certain secured credit products, if any, and (ii) a borrowing base as calculated under the Revolver Credit Agreement (such lesser amount, the “Maximum Borrowing Amount”). The borrowing base is calculated as the sum of (i) 85% of the value of certain eligible accounts of the Company and Lifecore, plus (ii) 85% of the value of eligible developmental service accounts of Lifecore (capped at $3.0 million), plus (iii) 85% of the value of eligible specified foreign account debtor accounts of Lifecore (capped at $3.5 million), plus (iv) 90% of eligible credit insured foreign accounts of the Company and Lifecore, plus (v) 80% of the value of certain eligible accounts of Curation, plus (vi) the lesser of (x) 85% of the net orderly liquidation value of certain eligible inventory and (y) 75% of the cost of certain eligible inventory, plus (vii) the lesser of 85% of the net orderly liquidation value of eligible in-transit inventory and 70% of the cost of eligible in-transit inventory, minus (viii) certain customary reserves. The obligations under the Revolver Credit Agreement mature on December 31, 2025 or, if any obligations under the Term Loan Credit Agreement remain outstanding as of such date, October 2, 2025.

Interest Rates and Fees

Borrowings under the Term Loan Credit Agreement have an interest rate of, at the option of the Company, (x) LIBOR (subject to a floor of 100 basis points) plus 850 basis points or (y) base rate (subject to a floor of 300 basis points) plus 750 basis points. Unused multi-draw delayed draw term loan commitments are subject to an undrawn commitment fee equal to 50 basis points per annum.

Borrowings under the Revolver Credit Agreement have an interest rate of, at the option of the Company, (x) LIBOR (subject to a floor of 50 basis points) plus between 200 and 250 basis points or (y) base rate (subject to a floor of 150 basis points) plus between 100 and 150 basis points, in each case, based upon average availability under the Revolver Credit Agreement. Unused revolver commitments are subject to an undrawn commitment fee equal to 37.5 basis points per annum.

Covenants

Each of the New Credit Agreements contains customary affirmative and negative covenants, including, among other things, limitations on incurrence of debt, liens, investments, restricted payments, restricted debt payments, maintenance of existence and affiliate transactions.

The Term Loan Credit Agreement also includes the following financial covenants: (i) a minimum fixed charge coverage ratio (that commences on May 30, 2021 at 1.10 to 1.00 and increases incrementally thereafter to 1.40 to 1.00 on August 31, 2024), (ii) a maximum leverage ratio (that commences on February 28, 2021 at 7.00 to 1.00 and decreases incrementally thereafter to 4.00 to 1.00 on February 28, 2025), (iii) a minimum Lifecore gross profits covenant (that commences on February 28, 2021 at $28.75 million and increases incrementally thereafter to $40.0 million on November 30, 2023), (iv) a maximum capital expenditures covenant (at various quarterly and trailing four quarter period levels described in the Term Loan Credit Agreement) that does not apply to the extent the unfinanced capital expenditures ratio (EBITDA to unfinanced capital expenditures) is greater than or equal to 1.0 to 1.0 and (v) a minimum liquidity covenant (defined as borrowing availability under the Revolver Credit Agreement plus certain qualified cash) of $7.5 million.

The Revolver Credit Agreement also includes a springing fixed-charge coverage ratio financial covenant of 1.0 to 1.0, which applies if either (x) an event of default has occurred or (y) borrowing availability under the Revolver Credit Agreement is less than the greater of $7.5 million and 10% of the Maximum Borrowing Amount.
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Events of Default

Each of the New Credit Agreements is subject to customary events of default, including, among other things, failure to pay principal, interest, fees or other amounts; covenant defaults; material inaccuracy of representations and warranties; bankruptcy events with respect to the Company; default under the other New Credit Agreement or any related ancillary agreements, actual or asserted invalidity of any of the New Credit Agreements or related ancillary agreements, judgment defaults, criminal adverse proceedings, certain FDA regulatory actions or a change of control of the Company.

Ancillary Agreements

On December 31, 2020, the Company, Curation, Lifecore and certain of the Company’s other subsidiaries, as grantors (collectively, the “Grantors”), entered into (i) that certain Pledge and Security Agreement (the “Term Loan Security Agreement”), dated as of December 31, 2020, with Goldman Sachs, as collateral agent, and (ii) that certain Pledge and Security Agreement (the “Revolver Security Agreement” and, together with the Term Loan Security Agreement, the “New Security Agreements”), dated as of December 31, 2020, with BMO, as administrative agent. Pursuant to the Term Loan Security Agreement, the Grantors secured their obligations under the Term Loan Credit Agreement by granting to Goldman Sachs, as collateral agent, a first priority security interest in certain collateral, including but not limited to equipment, fixtures, real property and intellectual property. Pursuant to the Revolver Security Agreement, the Grantors secured their obligations under the Revolver Credit Agreement by granting to BMO, as administrative agent, a first priority security interest in certain other collateral, including but not limited to inventory, cash and cash equivalents and deposit accounts. The security interest granted by the Grantors under each New Security Agreement continues in effect until the payment in full of all of the secured obligations under the respective New Credit Agreement.

The foregoing descriptions of each of the Term Loan Credit Agreement, the Revolver Credit Agreement, the Term Loan Security Agreement and the Revolver Security Agreement do not purport to be complete and is subject to, and qualified in its entirety by, reference to the respective agreements, copies of which are attached hereto as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3 and Exhibit 10.4, respectively, and are incorporated herein by reference.

Item 1.02 Termination of a Material Definitive Agreement.

The information set forth in Item 1.01 is incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 is incorporated herein by reference.

Item 7.01 Regulation of FD Disclosure.

On January 4, 2020, the Company issued a press release announcing the New Credit Agreements, which is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Exhibit 99.1 shall not be deemed “filed” for purposes of Section 18 of the Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, regardless of any general incorporation language in such filings.
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Item 9.01 Financial Statements and Exhibits.

(d)     Exhibit.

The following exhibits are furnished as part of this report:

Exhibit No.Description
104
Cover Page Interactive Data File – the cover page XBRL tags are embedded within the Inline XBRL document.


4



SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: January 5, 2021


LANDEC CORPORATION
By:/s/ Brian McLaughlin
Brian McLaughlin
Chief Financial Officer and Executive Vice President of Finance and Administration

5
Document
Exhibit 10.1







CREDIT AND GUARANTY AGREEMENT
dated as of December 31, 2020,
by and among
LANDEC CORPORATION,
CURATION FOODS, INC.,
LIFECORE BIOMEDICAL, INC.,
as Borrowers,
and

certain of its Affiliates party hereto from time to time, as guarantors,
the other Credit Parties party hereto from time to time as guarantors,
the Lenders party hereto from time to time,
and
GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P.,
as Administrative Agent and Collateral Agent
________________________________________________________
$170,000,000 Senior Secured Credit Facilities
________________________________________________________

GS/Landec – Credit and Guaranty Agreement


TABLE OF CONTENTS
Page:
SECTION 1.
DEFINITIONS AND INTERPRETATION
1
1.1.
Definitions
1
1.2.
Accounting Terms, Financials Statements, Calculations
58
1.3.
Interpretation
59
SECTION 2.
LOANS
60
2.1.
Term Loans
60
2.2.
[Intentionally Reserved]
62
2.3.
[Intentionally Reserved]
62
2.4.
Pro Rata Shares; Availability of Funds
62
2.5.
Use of Proceeds
62
2.6.
Evidence of Debt; Register; Promissory Notes
63
2.7.
Interest on Loans
64
2.8.
Conversion/Continuation
65
2.9.
Default Interest
65
2.10.
Fees
66
2.11.
Scheduled Payments/Commitment Reductions
66
2.12.
Voluntary Prepayments/Commitment Reductions
67
2.13.
Mandatory Prepayments/Commitment Reductions
68
2.14.
Application of Prepayments
72
2.15.
General Provisions Regarding Payments
73
2.16.
Ratable Sharing
74
2.17.
Making or Maintaining LIBO Rate Loans
75
2.18.
Increased Costs; Capital Adequacy
79
2.19.
Taxes; Withholding
80
2.20.
Obligation to Mitigate
83
2.21.
Defaulting Lenders
83
2.22.
Removal or Replacement of a Lender
85
2.23.
Companies as Co-Borrowers
86
2.24.
Appointment of Credit Party Representative
88
SECTION 3.
CONDITIONS PRECEDENT
89
3.1.
Closing Date
89
3.2.
Conditions to Each Credit Extension
94
SECTION 4.
REPRESENTATIONS AND WARRANTIES
96
4.1.
Organization; Requisite Power and Authority; Qualification
96
4.2.
Capital Stock and Ownership
96
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GS/Landec – Credit and Guaranty Agreement


4.3.
Due Authorization
96
4.4.
No Conflict
96
4.5.
Governmental Consents
97
4.6.
Binding Obligation
97
4.7.
Historical Financial Statements
97
4.8.
Projections
97
4.9.
No Material Adverse Change
98
4.10.
No Restricted Junior Payments
98
4.11.
Adverse Proceedings
98
4.12.
Payment of Taxes
98
4.13.
Properties
98
4.14.
Environmental Matters
99
4.15
No Defaults
100
4.16.
Material Contracts
100
4.17.
Governmental Regulation
100
4.18.
Federal Reserve Regulations; Exchange Act
100
4.19.
Employee Matters
100
4.20.
Employee Benefit Plans
101
4.21.
Certain Fees
101
4.22.
Solvency
101
4.23.
[Intentionally Reserved]
102
4.24.
Compliance with Laws
102
4.25.
Disclosure; Beneficial Ownership Certification
102
4.26.
Sanctions; Anti-Bribery and Anti-Corruption Laws; Anti-Terrorism and Anti-Money Laundering Laws
102
4.27.
Privacy Laws
103
4.28.
Food Laws
103
4.29.
Health Care Laws
104
4.30.
FDA Laws
105
4.31.
PACA and PASA Representations
107
4.32.
ABL Credit Documents
107
SECTION 5.
AFFIRMATIVE COVENANTS
108
5.1.
Financial Statements and Other Reports
108
5.2.
Existence
114
5.3.
Payment of Taxes and Claims
114
5.4.
Maintenance of Properties
115
5.5.
Insurance
115
5.6.
Books and Records; Inspections
115
5.7.
Lenders Meetings
115
5.8.
Compliance with Laws
116
5.9.
Environmental
116
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GS/Landec – Credit and Guaranty Agreement


5.10.
Additional Credit Parties
118
5.11.
Material Real Estate Assets; Additional Locations
119
5.12.
Compliance with Contractual Obligations
119
5.13.
Further Assurances
120
5.14.
Miscellaneous Business Covenants
120
5.15.
Post-Closing Matters
120
5.16.
PACA and PASA Compliance
120
5.17.
Credit Enhancements
121
5.18.
Health Care & FDA Related Covenants
121
SECTION 6.
NEGATIVE COVENANTS
121
6.1.
Indebtedness
121
6.2.
Liens
124
6.3.
Equitable Lien
125
6.4.
No Further Negative Pledges
126
6.5.
Restricted Junior Payments
126
6.6.
Restrictions on Subsidiary Distributions
126
6.7.Investments
127
6.8.
Financial Covenants
128
6.9.
Fundamental Changes; Disposition of Assets
132
6.10.
Disposal of Subsidiary Interests
134
6.11.
Sales and Leasebacks
134
6.12.
Transactions with Shareholders and Affiliates
134
6.13.
Conduct of Business; Foreign Subsidiaries
134
6.14.
Permitted Activities of Holdings
135
6.15.
[Intentionally Reserved]
135
6.16.
Amendments or Waivers with Respect to Certain Indebtedness
135
6.17.
Fiscal Year; Accounting Policies
136
6.18.
Deposit Accounts and Securities Accounts
136
6.19.
Amendments to Organizational Documents and Material Contracts
136
6.20.
Prepayments of Certain Indebtedness
136
6.21.
Use of Proceeds
136
6.22.
ABL Obligations
137
SECTION 7.
GUARANTY
137
7.1.
Guaranty of the Obligations
137
7.2.
Contribution by Guarantors
137
7.3.
Payment by Guarantors
138
7.4.
Liability of Guarantors Absolute
138
7.5.
Waivers by Guarantors
140
7.6.
Guarantors’ Rights of Subrogation, Contribution
141
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GS/Landec – Credit and Guaranty Agreement


7.7.
Subordination of Other Obligations
141
7.8.
Continuing Guaranty
142
7.9.
Authority of Guarantors or Companies
142
7.10.
Financial Condition of Companies
142
7.11.
Bankruptcy
142
7.12.
Discharge of Guaranty Upon Sale of Guarantor
143
7.13.
Keepwell
143
SECTION 8.
EVENTS OF DEFAULT
144
8.1.
Events of Default
144
8.2.
Consent to Receiver
147
8.3.
Cooperation of Credit Parties
148
SECTION 9.
AGENTS
148
9.1.
Appointment of Agents
148
9.2.
Powers and Duties
149
9.3.
General Immunity
149
9.4.
Agents Entitled to Act as Lender
151
9.5.
Lenders’ Representations, Warranties and Acknowledgment
152
9.6.
Right to Indemnity
154
9.7.
Successor Administrative Agent and Collateral Agent
154
9.8.
Collateral Documents and Guaranty
156
9.9.
Withholding Taxes
158
9.10.
Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim
158
9.11.
Bankruptcy Plan Voting
159
SECTION 10.
MISCELLANEOUS
160
10.1.
Notices
160
10.2.
Expenses
162
10.3.
Indemnity and Related Reimbursement
163
10.4.
Set-Off
164
10.5.
Amendments and Waivers
165
10.6.
Successors and Assigns; Participations
168
10.7.
Independence of Covenants
173
10.8.
Survival of Representations, Warranties and Agreements
173
10.9.
No Waiver; Remedies Cumulative
173
10.10.
Marshalling; Payments Set Aside
173
10.11.
Severability
173
10.12.
Obligations Several; Actions in Concert
174
10.13.
Headings
174
10.14.
Applicable Law
174
10.15.
Consent to Jurisdiction
174
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GS/Landec – Credit and Guaranty Agreement


10.16.
Waiver of Jury Trial
175
10.17.
Confidentiality
176
10.18.
Usury Savings Clause
177
10.19.
Effectiveness; Counterparts
177
10.20.
Entire Agreement
178
10.21.
PATRIOT Act
178
10.22.
Electronic Execution of Assignments and Credit Documents
178
10.23.
No Fiduciary Duty
178
10.24.
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
179
10.25.
Intercreditor Agreement
179
10.26.
Acknowledgement Regarding Any Supported QFCs
180

APPENDICES:    A-1    Initial Term Loan Commitments
A-2    Multi-Draw Term Loan Commitments
B    Notice Addresses

SCHEDULES:    1.1(a)    Historical Consolidated Adjusted EBITDA
1.1(b)    Certain Material Real Estate Assets
1.1(c)    Historical Consolidated Gross Profit
4.1    Jurisdictions of Organization
4.2    Capital Stock and Ownership
4.11    Adverse Proceedings
4.13(a)    Title
4.13(b)    Real Estate Assets
4.14    Environmental Matters
4.16    Material Contracts
5.15    Certain Post-Closing Matters
6.1    Certain Indebtedness
6.2    Certain Liens
6.12    Certain Affiliate Transactions

EXHIBITS:        A-1    Funding Notice
A-2    Conversion/Continuation Notice
B    Assignment Agreement
C    U.S. Tax Compliance Certificate
D    Compliance Certificate
E-1    Closing Date Certificate
E-2    Solvency Certificate
F    Reserved
G    Counterpart Agreement



v
GS/Landec – Credit and Guaranty Agreement


CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of December 31, 2020, is entered into by and among LANDEC CORPORATION, a Delaware corporation (“Holdings”), CURATION FOODS, INC., a Delaware corporation (“Curation”), and LIFECORE BIOMEDICAL, INC., a Delaware corporation (“Lifecore” and, together with Holdings and Curation, collectively, “Companies” and, each, a “Company”) as borrowers, the other Credit Parties party hereto from time to time, the Lenders party hereto from time to time and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. (“GSSLG”), as Administrative Agent and Collateral Agent.
RECITALS:
WHEREAS, the Lenders have agreed to extend certain credit facilities to Companies in the amounts and upon the terms and conditions more particularly set forth herein, the proceeds of which will be used for the purposes specified in Section 2.5;
WHEREAS, each Credit Party has agreed to guarantee the Obligations of the other Credit Parties and to secure all of its respective Obligations by granting to Collateral Agent, for the benefit of the Secured Parties, a First Priority Lien on substantially all of its respective assets (other than the ABL Priority Collateral upon which the Collateral Agent shall be granted a junior priority Lien), including a pledge of all of the Capital Stock issued by each Subsidiary of Holdings, subject to the limitations set forth herein and in the Collateral Documents; and
WHEREAS, the business of Holdings and its Subsidiaries is a mutual and collective enterprise, and the Credit Parties believe that the consolidation of all Loans and other accommodations under this Agreement will enhance Companies Subsidiaries’ aggregate borrowing powers and facilitate the administration of their relationship with the Agents and Lenders, all to the Credit Parties’ respective individual and mutual advantage.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.    DEFINITIONS AND INTERPRETATION
1.1.    Definitions
. The following terms used herein, including in the preamble, recitals, appendices, schedules and exhibits hereto, shall have the following meanings:
“ABL Agent” means Bank of Montreal, as administrative agent for the ABL Lenders under the ABL Credit Agreement and any successor administrative agent appointed in accordance with the terms thereof.
“ABL Availability” means, as of any date of determination, the “Maximum Borrowing Amount ” (as defined in the ABL Credit Agreement) at such time.
GS/Landec – Credit and Guaranty Agreement


“ABL Borrowing Base” means the “Borrowing Base” as defined in the ABL Credit Agreement.
“ABL Collateral Documents” means all “Security Instruments” or similar term as defined in the ABL Credit Agreement, and all other security agreements, mortgages, deeds of trust and other collateral documents executed and delivered at any time in connection with any ABL Credit Agreement.
“ABL Commitment” means “Commitment” as defined in the ABL Credit Agreement.
“ABL Credit Agreement” means that certain Credit Agreement, dated as of the Closing Date, by and among Companies, the ABL Agent and the ABL Lenders, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement.
“ABL Credit Documents” means, collectively, the ABL Credit Agreement, the ABL Security Instruments, the Intercreditor Agreement, the other “Loan Documents” (as defined in the ABL Credit Agreement) and all other agreements, instruments and other documents executed and delivered at any time in connection with the ABL Credit Agreement (in each case, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement).
“ABL Indebtedness” means, collectively, the “Obligations” as defined in the ABL Credit Agreement not to exceed the amount of any such Indebtedness permitted pursuant to Section 6.1(k).
“ABL Lenders” means the lenders from time to time party to the ABL Credit Agreement.
“ABL Letters of Credit” means the letters of credit issued in accordance with the ABL Credit Agreement.
“ABL Loans” means the revolving loans made in accordance with the ABL Credit Agreement.
“ABL Priority Collateral” as defined in the Intercreditor Agreement.
“Acquisition” means the acquisition of, by purchase or otherwise (other than purchases or other acquisitions of inventory, materials, equipment and capital expenditures, in each case, in the ordinary course of business), the business of, a substantial portion of the property or assets of, or a substantial portion of the Capital Stock or other evidence of beneficial ownership of, or any division, line of business or business unit of, any Person.
“Adjusted LIBO Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a LIBO Rate Loan, the greater of (x) 1.00% per annum and (y) the rate per annum obtained by dividing (i)(a) the rate per annum equal to the rate determined
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GS/Landec – Credit and Guaranty Agreement


by Administrative Agent to be the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of that rate) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars displayed on the ICE LIBOR USD page of the Reuters Screen (or any replacement Reuters page that displays such rate) or on the appropriate page of any other information service that publishes that rate from time to time in place of Reuters, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date (the rate referenced in this clause (a), the “Eurodollar Screen Rate”), (b) in the event the Eurodollar Screen Rate is not available, the rate per annum equal to the offered rate, truncated at five decimal digits, that is set forth on or in such other available quotation page or service as is acceptable to Administrative Agent in its sole discretion and that provides an average ICE Benchmark Administration Limited Interest Settlement Rate or another London interbank offered rate administered by any other Person that takes over the administration of such rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available or if such information, in the reasonable judgment of Administrative Agent, shall cease to accurately reflect the rate offered by leading banks in the London interbank market as reported by any publicly available source of similar market data selected by Administrative Agent, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate, truncated at five decimal digits, to first class banks in the London interbank market for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to one minus the Applicable Reserve Requirement.
“Administrative Agent” means GSSLG in its capacity as administrative agent for the Lenders pursuant to Section 9, and any successor administrative agent appointed in accordance with the terms thereof.
“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation involving Holdings or any of its Subsidiaries, or arbitration (whether or not purportedly on behalf of Holdings or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Holdings or any of its Subsidiaries, threatened against or affecting Holdings or any of its Subsidiaries or any property of Holdings or any of its Subsidiaries.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” as defined in Section 2.17(c).
“Affected Loans” as defined in Section 2.17(c).
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GS/Landec – Credit and Guaranty Agreement


“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling (including any member of the senior management group of such Person), controlled by or under common control with such Person or any Subsidiary of such Person. For the purposes of this definition, the terms “controlling”, “controlled by” and “under common control with”, as applied to any Person, mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ability to exercise voting power, by contract or otherwise. Notwithstanding anything in this definition to the contrary, (i) Windset shall be deemed to be an Affiliate and (ii) no Agent, no Lender and none of their respective Affiliates shall be considered an “Affiliate” of any Credit Party or of any Subsidiary of any Credit Party.
“Agent” means each of Administrative Agent, Collateral Agent, Syndication Agent, Documentation Agent, and any other Person appointed as an agent, arranger, bookrunner or similar title or capacity under or otherwise in connection with the Credit Documents.
“Agent Affiliates” as defined in Section 10.1(b)(iii).
“Aggregate Amounts Due” as defined in Section 2.16.
“Aggregate Payments” as defined in Section 7.2.
“Agreement” means this Credit and Guaranty Agreement.
“Anti-Bribery and Anti-Corruption Laws” means any and all requirements of law related to anti-bribery or anti-corruption matters, including the United States Foreign Corrupt Practices Act of 1977 and any other anticorruption law applicable to Holdings or any of its Subsidiaries.
“Anti-Terrorism and Anti-Money Laundering Laws” means any and all requirements of law related to engaging in, financing or facilitating terrorism or money laundering, including the PATRIOT Act, the Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§5311-5330 and 12 U.S.C. §§1818(s), 1820(b) and 1951-1959), the Trading With the Enemy Act (50 U.S.C. §4301 et seq.), Executive Order 13224 (effective September 24, 2001) and each of the laws, regulations and executive orders administered by OFAC (31 C.F.R., Subtitle B, Chapter V).
“Applicable Margin” means a percentage, per annum, equal to (a) 8.50% with respect to LIBO Rate Loans and (b) 7.50% with respect to Base Rate Loans.
“Applicable Reserve Requirement” means, at any time, for any LIBO Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to
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GS/Landec – Credit and Guaranty Agreement


(i) any category of liabilities that includes deposits by reference to which the applicable Adjusted LIBO Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets that include LIBO Rate Loans. A LIBO Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on LIBO Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
“Approved Electronic Communication” as defined in Section 10.1(b)(iii).
“Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer (including through a plan of division), exclusive license (as licensor or sublicensor) or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party that is not Holdings or a Mexican Subsidiary), in one transaction or a series of transactions, of all or any part of Holdings’ or any of its Subsidiaries’ respective businesses, assets or properties of any kind, whether real, personal or mixed, whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including the Capital Stock of any of Holdings’ Subsidiaries, other than (a) inventory sold to unaffiliated customers in the ordinary course of business and (b) the leasing or subleasing of Real Estate Assets (x) in existence on the Closing Date, and (y) following the Closing Date, in the ordinary course of business in an amount not to exceed $150,000 in the aggregate during any Fiscal Year (in each case, other than sale and leaseback transactions prohibited under Section 6.11). For purposes of clarification, the term “Asset Sale” shall include (i) the sale or other disposition for value of any contracts, (ii) the early termination or modification of any contract resulting in the receipt by Holdings or any of its Subsidiaries of a Cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts that would have been due through the date of termination or modification without giving effect thereto) and (iii) a Permitted Curation Sale.
“Asset Sale Leverage Ratio” means, as of any date of determination, the ratio of (i) the Consolidated Funded Debt as of such date; provided, however, for purposes of determining the Asset Sale Leverage Ratio, any Indebtedness in this clause (i) attributable to ABL Indebtedness shall be based on the average balance of such ABL Indebtedness for (x) in the case of any date of determination occurring prior to the first anniversary of the Closing Date, the period beginning on the Closing Date and ending on such date, or (y) in the case of any date of determination occurring on or after the first anniversary of the Closing Date, the four-Fiscal Quarter period ending on such date to (ii) pro forma Consolidated Adjusted EBITDA for the fourFiscal Quarter period ending on such date (or, if such date of determination is not the last day of a Fiscal Quarter in respect of which financial statements and a Compliance Certificate have been or were required to be delivered, for the four-Fiscal Quarter ending as of the most recently concluded Fiscal Quarter for which financial statements have previously been or were required to be delivered).
“Asset Sale Reinvestment Amounts” as defined in Section 2.13(a).
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GS/Landec – Credit and Guaranty Agreement


“Asset Sale Reinvestment Period” as defined in Section 2.13(a).
“Assignment Agreement” means an assignment and assumption agreement substantially in the form of Exhibit B.
“Assignment Effective Date” as defined in Section 10.6(b).
Assumed Indebtedness” means unsecured Indebtedness of a Person that becomes a Subsidiary as a result of any Permitted Acquisition or other Investment permitted under Section 6.7 which (a) is in existence at the time such Person becomes a Subsidiary, (b) has not been incurred or created in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary, (c) in respect of which only such Person and its Subsidiaries, if any, so acquired are obligors with respect to such Indebtedness, in each case, only so long as at the time of consummation of any such Permitted Acquisition or other permitted Investment permitted under Section 6.7, (i) no Event of Default has occurred or is continuing or would result therefrom and (ii) the Credit Parties are in compliance with Section 6.8.
“Authorized Officer” means, as applied to any Person that is an entity, any duly authorized natural person holding the position of chairman of the Board of Directors (if an officer), chief executive officer, president, vice president, Chief Financial Officer or, if approved by Administrative Agent, any other officer position with similar authority; provided, the secretary or assistant secretary of such Person, or another officer of such Person satisfactory to Administrative Agent, shall have delivered an incumbency certificate to Administrative Agent verifying the authority of such Authorized Officer.
“Availability” means, at any time of determination, an amount equal to:
(i)    with respect to any Class of Commitments, an amount equal to the lesser of (a) the aggregate amount of undrawn Commitments of such Class and (b) the difference of (I) the Maximum Credit Amount less (II) the aggregate outstanding principal (or equivalent) balance of Consolidated Funded Debt (including any outstanding Loans and any other Indebtedness (including any outstanding ABL Loans and ABL Letters of Credit) that will be incurred simultaneously with or on the same date as such Credit Extension) at such time; and
(ii)    with respect to all Commitments, an amount equal to the lesser of (a) the aggregate amount of undrawn Commitments of all Classes, and (b) the difference of (I) the Maximum Credit Amount less (II) the aggregate outstanding principal (or equivalent) balance of Consolidated Funded Debt (including any outstanding Loans and any other Indebtedness (including any outstanding ABL Loans and ABL Letters of Credit) that will be incurred simultaneously with or on the same date as such Credit Extension) at such time.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, 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
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including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.17(b)(iv).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United States Code.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus 0.50%, (iii) the sum of (a) the Adjusted LIBO Rate (after giving effect to any Adjusted LIBO Rate “floor”) that would be payable on such day for a LIBO Rate Loan with a one-month Interest Period plus (b) the difference between the Applicable Margin for LIBO Rate Loans and the Applicable Margin for Base Rate Loans, and (iv) 3.00%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.
“Benchmark” means, initially, Adjusted LIBO 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 Adjusted LIBO 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 2.17(b)(i).
Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1)    the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
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(2)    the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3)    the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Credit Party Representative as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U. S. dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1)    for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(a)    the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;
(b)    the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2)    for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Credit Party Representative for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of
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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;
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).
“Benchmark Replacement Date” means 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 date of the public statement or publication of information referenced therein; 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 Requisite Lenders.
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GS/Landec – Credit and Guaranty Agreement


For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means 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 Board of Governors, 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 representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means 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 Credit Document in accordance with Section 2.17(b)
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and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.17(b).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in form and substance reasonably acceptable to the Administrative Agent.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Beneficiary” means each Agent, Lender and Lender Counterparty.
“Benefit Plan” means any of (i) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (ii) a “plan” as defined in Section 4975 of the Internal Revenue Code or (iii) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“Board of Directors” means (i) with respect to any corporation or company, the board of directors of such corporation or company or any committee thereof duly authorized to act on behalf of such board, (ii) with respect to any partnership, the board of directors or equivalent governing body of the general partner of such partnership, (iii) with respect to any limited liability company, the manager, the managing member or members or any controlling committee or board of managers (or equivalent governing body) of such limited liability company or the sole member or the managing member thereof, and (iv) with respect to any other Person, the entity, individual, board or committee of such Person serving a similar function.
“Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor Governmental Authority.
“Business Day” means (i) any day excluding Saturday, Sunday and any day that is a legal holiday under the laws of the State of New York or the State of Texas, or is a day on which banking institutions located in any such state are authorized or required by law or other governmental action to close, and (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted LIBO Rate or any LIBO Rate Loans, the term “Business Day” means any day that is a Business Day described in clause (i) and that is also a day for trading by and between banks in Dollar deposits in the London interbank market.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by such Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of such Person.
“Capital Lease Obligations” means, as applied to any Person that is a lessee under any Capital Lease, that portion of obligations under such Capital Lease that is properly classified as a liability on a balance sheet in conformity with GAAP.
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“Capital Stock” means any and all shares, stock, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership or profits interests in a Person that is another type of entity, including partnership interests, membership interests, voting trust certificates, certificates of interest and profits interests, participations or similar arrangements, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire, subscribe, convert to or otherwise receive or participate in the economic or other rights associated with any of the foregoing.
“Cash” means money, currency or a credit balance in any Deposit Account.
“Cash Equivalents” means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the U.S. Federal Government or (b) issued by any agency of the U.S., in each case of clauses (a) and (b), the obligations of which are backed by the full faith and credit of the U.S., mature within one year after such date and have, at the time of the acquisition thereof, a rating of at least A-1 from S&P and at least P-1 from Moody’s; (ii) marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof, in each case, maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) certificates of deposit or bankers’ acceptances maturing within three months after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the U.S. or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000; and (iv) shares of any money market mutual fund that (a) has at least 95.00% of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $5,000,000,000, and (c) has the highest rating obtainable from both S&P and Moody’s.
“cGMP” as defined in the preamble to Section 4.30.
“Change in Law” means the occurrence, after the date hereof, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines and directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the U.S. or foreign regulatory authorities, in each case, pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means, at any time, (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) (a) becomes the “beneficial owner” (as defined in Rules 13d 3 and 13d 5 under the Exchange Act) of 35% or more on a fully
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diluted basis of the voting interests in the Capital Stock of Holdings, or (b) shall have obtained the power (whether or not exercised) to elect a majority of the Directors of Holdings; (ii) Holdings shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interests in the Capital Stock of each Company (other than Curation or one or more of its Subsidiaries in connection with a Permitted Curation Sale); (iii) any Company shall cease to beneficially own and control 100% (directly or indirectly) on a fully diluted basis of the economic and voting interests in the Capital Stock of each of its Subsidiaries, except where such failure is the result of a transaction permitted under the Credit Documents (other than Curation or one or more of its Subsidiaries in connection with a Permitted Curation Sale); (iv) during any period of twelve (12) consecutive months, a majority of the members of the Board of Directors of any Credit Party cease to be composed of individuals (x) who were members of that Board of Directors on the first day of such period, (y) whose election or nomination to that Board of Directors was approved by individuals referred to in clause (x) above constituting at the time of such election or nomination at least a majority of that Board of Directors or (z) whose election or nomination to that Board of Directors was approved by individuals referred to in clauses (x) and (y) above constituting at the time of such election or nomination at least a majority of that Board of Directors; or (v) any “change of control” or similar event under the ABL Credit Agreement or the definitive documentation with respect to any Subordinated Indebtedness shall occur.
“Chief Financial Officer” means, as applied to any Person that is an entity, any duly authorized natural person holding the position of chief financial officer or, if approved by Administrative Agent, any other officer position with similar financial responsibility; provided, the secretary or assistant secretary of such Person, or another officer of such Person satisfactory to Administrative Agent, shall have delivered an incumbency certificate to Administrative Agent verifying the authority of such Chief Financial Officer.
“Class” means (i) with respect to the Lenders, each of the following classes of Lenders: (a) Lenders having Initial Term Loan Exposure, and (b) Lenders having Multi-Draw Term Loan Exposure, (ii) with respect to Loans, each of the following classes of Loans: (a) Initial Term Loans, and (b) Multi-Draw Term Loans, and (iii) with respect to Commitments, each of the following classes of Commitments: (a) Initial Term Loan Commitments, and (b) Multi-Draw Term Loan Commitments.
“Closing Date” means December 31, 2020.
“Closing Date Certificate” means a certificate dated as of the Closing Date and substantially in the form of Exhibit E-1.
“Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are granted and/or purported to be granted to ABL Agent or any Agent under any of the ABL Collateral Documents or the Collateral Documents in each case, subject to the Intercreditor Agreement, together with all rents, issues, profits, products and Proceeds thereof.
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“Collateral Access Agreement” means a collateral access agreement in form and substance satisfactory to Collateral Agent.
“Collateral Agent” as defined in the preamble hereto.
“Collateral Documents” means, collectively, the Intercreditor Agreement, the Pledge and Security Agreement, the Mexican Subsidiary Security Agreement (from and after the Mexican Subsidiary Joinder Date), any Intellectual Property Security Agreements, any Mortgages, any Deposit Account Control Agreements, any Securities Account Control Agreements, any Collateral Access Agreements, and all other instruments, documents and agreements that are expressly designated pursuant to their terms to be “Collateral Documents” or are otherwise executed and delivered by or on behalf of any Credit Party or any other Person pursuant to this Agreement or any of the other Credit Documents in order to grant to, or perfect in favor of, Collateral Agent, for the benefit of the Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.
“Collateral Questionnaire” means a collateral questionnaire in form satisfactory to Collateral Agent that provides information with respect to the real, personal and mixed property of each Credit Party and their respective Subsidiaries.
“Commitment” means, as the context requires, any Initial Term Loan Commitment or Multi-Draw Term Loan Commitment.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. 1 et seq.).
“Company” means (i) Holdings, (ii) Curation, (iii) Lifecore, (iv) each other Person signatory hereto as a “Company” and (v) each other Person joined as a “Company” to this Agreement and the other Credit Documents after the Closing Date pursuant to Section 5.10. At any time there is only one Person party hereto and to the other Credit Documents as “Company”, all references herein or therein to “a Company”, “any Company”, “each Company” or “Companies” shall be deemed to be a reference to such Person.
“Compliance Certificate” means a certificate of the Chief Financial Officer of Credit Party Representative substantially in the form of Exhibit D.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits.
“Consolidated Adjusted EBITDA” means, for any period, an amount determined for Holdings and its Subsidiaries on a consolidated basis equal to:
(a)    Consolidated Net Income, plus
(b)    in each case, to the extent reducing Consolidated Net Income and constituting Valid Expense Items, the sum, without duplication, of the amounts for such period of:
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(i)    Consolidated Interest Expense, plus
(ii)    provisions for taxes based on income, profits or capital, including federal, state, provincial, territorial, franchise, excise, property and similar taxes and foreign withholding taxes paid or accrued, including giving effect to any penalties and interest with respect thereto, and state taxes in lieu of business fees (including business license fees) and payroll tax credits, income tax credits and similar credits and including an amount equal to the amount of tax distributions actually made (for the actual payment of Taxes) to the holders of Equity Interests of Holdings or its Subsidiaries or any direct or indirect parent of Holdings or its Subsidiaries in respect of such period (in each case, to the extent attributable to the operations of Holdings and its Subsidiaries), which shall be included as though such amounts had been paid as income taxes directly by Holdings or its Subsidiaries, plus
(iii)    total depreciation expense, plus
(iv)    total amortization expense, plus
(v)    to the extent not capitalized under GAAP, Transaction Costs not exceeding $1,500,000, plus
(vi)    to the extent not capitalized under GAAP, Specified Compliance Costs not to exceed $5,000,000 in the aggregate for the twelve (12) month period following the Closing Date, plus
(vii)    to the extent not capitalized under GAAP, other non-cash charges, impairments or losses for such period (excluding (x) any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards (including any long-term management equity incentive plans) and the payment of the exercise price and/or tax withholding obligations with respect to the vesting, settlement and/or exercise of such award described in this clause (x) and (y) any such non-cash charge to the extent that it represents an accrual or reserve for potential cash charges in any future period or amortization of a prepaid cash charge that was paid in a prior period (including, but not limit to, write-offs or impairment charges in respect of accounts receivable or inventory)), plus
(viii)    to the extent not capitalized under GAAP, one-time, unusual, non-recurring or extraordinary expenses, losses or charges actually incurred in such period (not including any revenue based losses or incremental margin) and, without duplication, other reasonable and documented fees, charges, costs and expenses (including third party legal, investigative and consulting expenses) actually incurred during such period in respect of restructuring, severance, relocation, integration, facilities opening, facilities closures, business optimization, signing, retention or completion bonuses, recruiting, transition, and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities), including any one-time expense relating to enhanced accounting function or other transaction costs; provided,
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that the aggregate amount of such losses, fees, charges, costs and expenses that may be added back to Consolidated Net Income in the calculation of Consolidated Adjusted EBITDA pursuant to this clause (viii) in any trailing twelve (12) month period shall not exceed (A) for any such period ending prior to the consummation of a Permitted Curation Sale of the type described in (I) clauses (i) and (ii) of the definition thereof or (II) a sale of substantially all of Curation in a series of transactions in accordance with clause (iii) of the definition thereof, the greater of (x) $5,000,000 and (y) 10% of Consolidated Adjusted EBITDA for such period (determined prior to giving effect to any adjustments to Consolidated Adjusted EBITDA pursuant to this clause (viii)) and (B) for any such period ending after the consummation of a Permitted Curation Sale of the type described in (I) clauses (i) and (ii) of the definition thereof or (II) a sale of substantially all of Curation in a series of transactions in accordance with clause (iii) of the definition thereof, the greater of (x) $2,500,000 and (y) 10% of Consolidated Adjusted EBITDA for such period (determined prior to giving effect to any adjustments to Consolidated Adjusted EBITDA pursuant to this clause (viii)); provided, the adjustments described under this clause (viii) shall be supported by reasonably detailed schedules and information with respect to such adjustments, minus
(c)    in each case, to the extent increasing Consolidated Net Income and constituting Valid Expense Items, the sum, without duplication, for such period of all non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent that it represents the reversal of an accrual or reserve for potential cash gains in any prior period, which such non-cash gains shall include any adjustment in the fair market value of the Windset Investment), plus, other non-ordinary course income (which non-ordinary course income, for the avoidance of doubt, shall (i) include (and result in a reduction of Consolidated Adjusted EBITDA to the extent increasing Consolidated Net Income for) any cash amounts received in connection with an Asset Sale of the Windset Investment and (ii) not include (or result in a reduction of Consolidated Adjusted EBITDA to the extent increasing Consolidated Net Income following the Windset Pledge Event for) (A) any cash dividends, other cash payments or distributions, other than the type described in the immediately preceding clause (i).
Notwithstanding the foregoing or anything to the contrary in this Agreement:
(i)    with respect to any fiscal month set forth on Schedule 1.1(a), Consolidated Adjusted EBITDA for such fiscal month shall be the amount set forth opposite thereto on Schedule 1.1(a);
(ii)    for purposes of “annualizing” any calculation of Consolidated Adjusted EBITDA under this Agreement, no add-backs, adjustments or other income or gain items that are in the nature of “one-time” or “non-recurring” items or are otherwise made in respect of transactions, events, or circumstances that are not expected to recur in future periods may not be “annualized” unless approved by Administrative Agent in its sole discretion;
(iii)    with respect to any period during which a Permitted Acquisition or similar Investment or an Asset Sale has occurred (each, a “Subject Transaction”), for
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purposes of determining compliance with the financial covenants set forth in Section 6.8 or any other calculation herein using Consolidated Adjusted EBITDA (but not for purposes of determining the Applicable Margin), Consolidated Adjusted EBITDA shall be calculated with respect to such period on a Pro Forma Basis (which pro forma adjustments shall be certified by the Chief Financial Officer of Credit Party Representative and may only be included in determining such compliance to the extent approved by Administrative Agent in its sole discretion) using the historical audited financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of Holdings and its Subsidiaries, which shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans incurred during such period); provided, notwithstanding anything to the contrary in this Agreement, any such adjustments specified in this clause (iii) shall be subject to the approval of Administrative Agent in its sole discretion for all purposes of this Agreement;
(iv)    from and after the Mexican Subsidiary Joinder Date, unless the conditions set forth in Section 5.10(b) have been satisfied, the Consolidated Adjusted EBITDA attributable to any Mexican Subsidiary not then party to the Mexican Subsidiary Security Agreement shall be excluded from the calculation of Consolidated Adjusted EBITDA (on both a current and historical basis) until such time as the requirements of Section 5.10(b) have been fulfilled with respect to such Mexican Subsidiary; provided, notwithstanding the foregoing, the provisions of this clause (iv) shall not be construed as a consent by Administrative Agent or any Lender to the failure of any Credit Party to perform its obligations set forth in Section 5.10(b).
“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures of Holdings and its Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in the “purchase of property and equipment or similar items”, or that should otherwise be capitalized, as reflected in the consolidated statement of cash flows of Holdings and its Subsidiaries.
“Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for such period, excluding (i) any paid-in-kind interest, (ii) any amortization of deferred financing costs, (iii) any realized or unrealized gains or losses attributable to Interest Rate Agreements, (iv) Cash costs associated with incurring or terminating Interest Rate Agreements and Cash costs associated with breakage in respect of Interest Rate Agreements and (v) penalties and interest relating to Taxes paid in cash.
“Consolidated Current Assets” means, as at any date of determination, the total assets of Holdings and its Subsidiaries on a consolidated basis that are properly classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents.
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“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Holdings and its Subsidiaries on a consolidated basis that are properly classified as current liabilities in conformity with GAAP, excluding the current portion of long-term debt.
“Consolidated Excess Cash Flow” means, for any period, an amount (if positive) determined for Holdings and its Subsidiaries on a consolidated basis equal to:
(a)    the sum, without duplication, of the amounts for such period of (i) Consolidated Net Income (excluding (x) the impact of any non-cash adjustments included in calculating Consolidated Net Income during such period and (y) any Specified Extraordinary Receipts of the type described in clause (ii) of the definition thereof received during such period (solely to the extent such Specified Extraordinary Receipts are used to repay then outstanding ABL Indebtedness (which, for the avoidance of doubt, shall not be required to be accompanied by a permanent reduction of ABL Commitments)), minus
(b)    the sum, without duplication, of the amounts for such period paid from Internally Generated Cash (other than clause (iii) below), in each case, to the extent not reducing Consolidated Net Income in the calculation thereof during such period of (i) to the extent permitted or otherwise required hereunder, mandatory and scheduled repayments of Indebtedness for borrowed money (but not, for the avoidance of doubt, voluntary prepayments or any repayments in respect of the ABL Indebtedness unless such prepayment or repayment simultaneously and permanently reduces the ABL Commitments in the amount of such payment) and scheduled payments of Capital Lease Obligations (excluding any interest expense portion thereof but including any principal representing capitalized interest), plus (ii) Consolidated Capital Expenditures actually made during such period, plus (iii) Consolidated Capital Expenditures that are planned to be consummated or made, in each case, (A) in accordance with an executed, definitive agreement with respect to such planned or consummated Consolidated Capital Expenditures, and (B) during the period of four consecutive Fiscal Quarters of Holdings following the end of such period (provided that amounts described in this clause (iii) will not reduce Consolidated Excess Cash Flow in subsequent periods and, to the extent not paid during such following four consecutive Fiscal Quarter period, will increase Consolidated Excess Cash Flow in the subsequent period), plus (iv) Consolidated Cash Interest Expense, plus (v) provisions for current Taxes based on the income of Holdings and its Subsidiaries and payable by such Persons in cash with respect to such period, plus (vi) Specified Compliance Costs to the extent permitted hereunder, plus (vii) the Consolidated Working Capital Adjustment (if positive) during such period, plus (viii) Transaction Costs paid in cash during such period.
“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the amounts determined for Holdings and its Subsidiaries on a consolidated basis equal to (i) Consolidated Cash Interest Expense, (ii) scheduled payments of principal (or equivalent amounts) on Consolidated Funded Debt, and (iii) an amount not less than zero equal to actual cash Taxes paid with respect to such period (net of any cash refunds in respect of Taxes received in such period). Notwithstanding the foregoing, with respect to any period during which a Subject Transaction has occurred, for purposes of determining compliance with the
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financial covenant set forth in Section 6.8(b), the components of Consolidated Fixed Charges shall be calculated with respect to such period on a Pro Forma Basis (which pro forma adjustments shall be certified by the Chief Financial Officer of Credit Party Representative and may only be included in determining such compliance to the extent approved by Administrative Agent in its sole discretion) using the historical audited financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of Holdings and its Subsidiaries, which shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans incurred during such period); provided, notwithstanding anything to the contrary in this Agreement, any adjustments specified in this sentence shall be subject to the approval of Administrative Agent in its sole discretion for all purposes of this Agreement.
Consolidated Funded Debt” means, as at any date of determination, the aggregate amount of all Indebtedness of the type described in clauses (i), (ii), (iv), (vi) (to the extent of unreimbursed amounts thereunder), (viii), (ix) and (x) of the definition of “Indebtedness” (in the case of such clauses (viii), (ix) and (x), solely in respect of Indebtedness of the type described in clauses (i), (ii), (iv) or (vi) (to the extent of unreimbursed amounts thereunder) of the definition of “Indebtedness” and limited to an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP), in each case, of Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
“Consolidated Gross Profit” means, for any period, (i) aggregate total revenues of Lifecore and its Subsidiaries for such period minus (ii) the aggregate cost of sales of Lifecore and its Subsidiaries for such period, in each case determined on a consolidated basis in accordance with the Lifecore’s historical public reporting and accounting practices as of the Closing Date. Notwithstanding the foregoing or anything to the contrary in this Agreement, with respect to any Fiscal Quarter set forth on Schedule 1.1(c), Consolidated Gross Profit for such Fiscal Quarter shall be the amount set forth opposite thereto on Schedule 1.1(c).
“Consolidated Interest Expense” means, for any period, (i) total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Holdings and its Subsidiaries determined on a consolidated basis with respect to all outstanding Indebtedness, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under Interest Rate Agreements (other than in connection with the early termination thereof), but excluding, however, (x) any amounts referred to in the Fee Letter payable on or before the Closing Date and (y) annual agency fees paid to any administrative agents and collateral agents with respect to any secured or unsecured loans, debt facilities, debentures, bonds, commercial paper facilities or other forms of Indebtedness, in each case which shall be on market terms minus (ii) total interest income of Holdings and its Subsidiaries determined on a consolidated basis.
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“Consolidated Liquidity” means, as at any date of determination, an amount determined for Holdings and its Subsidiaries on a consolidated basis equal to the sum of (i) the Qualified Cash of Holdings and its Subsidiaries as of such date, plus (ii) ABL Availability as of such date; provided, at any time that the conditions set forth in Section 5.02 of the ABL Credit Agreement cannot be satisfied as of such time, the ABL Availability shall be deemed to be zero.
“Consolidated Maintenance Capital Expenditures” means, for any period, the aggregate of all Consolidated Capital Expenditures of Holdings and its Subsidiaries during such period during such period to the extent such Consolidated Capital Expenditures are incurred to maintain existing property and equipment rather than to build or acquire new property and equipment or otherwise grow and expand the business of Holdings and its Subsidiaries.
“Consolidated Net Income” means, for any period, the net income (or loss) of Holdings and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided that, the following items shall be excluded or otherwise disregarded in the calculation of Consolidated Net Income, without duplication: (a) the income (or loss) of any Person that is not a Wholly-Owned Subsidiary; provided that notwithstanding the foregoing, in the case of income derived from the Windset Investment such income shall be included in Consolidated Net Income to the extent that (I) the Windset Pledge Event shall have occurred, (II) any such income is actually received by Holdings or such Subsidiary in the form of dividends or distributions paid in cash and (III) such dividends or distributions are paid in accordance with the Windset’s Organizational Documents, (b) the income (or loss) of any Person accrued prior to the date it becomes a Credit Party or is merged into or consolidated with any Credit Party or such Person’s assets are acquired by any Credit Party, (c) the income of any Subsidiary of Holdings to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not at the time permitted by operation of the terms of its Organizational Documents or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary, (d) any after-Tax gains or losses attributable to Asset Sales or returned surplus assets of any Pension Plan, and (e) to the extent not included in clauses (a) through (d) above, any net extraordinary gains or net extraordinary losses.
“Consolidated Unfinanced Capital Expenditures” means, for any period, the difference of (a) Consolidated Capital Expenditures made during such period which are not financed from the proceeds of any Indebtedness (other than ABL Loans or Multi-Draw Term Loans) minus (b) Consolidated Capital Expenditures made during such period which are financed from Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds and/or proceeds of Permitted Capital Stock Issuances.
“Consolidated Working Capital” means, as at any date of determination, an amount equal to Consolidated Current Assets minus Consolidated Current Liabilities.
“Consolidated Working Capital Adjustment” means, for any period of determination on a consolidated basis, the amount (which may be a negative number) equal to the difference of (i) Consolidated Working Capital as of the beginning of such period minus (ii) Consolidated Working Capital as of the end of such period.
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“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by such Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which such Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Contributing Guarantors” as defined in Section 7.2.
“Controlled Account” means (i) any Deposit Account of a Credit Party that is subject to a Deposit Account Control Agreement, and (ii) any Securities Account of a Credit Party that is subject to a Securities Account Control Agreement.
“Conversion/Continuation Date” means the effective date of a conversion or continuation, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
“Conversion/Continuation Notice” means a conversion/continuation notice substantially in the form of Exhibit A-2.
Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Counterpart Agreement” means a counterpart agreement substantially in the form of Exhibit G.
“Covered Entity” means any of the following:
(i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.§ 47.3(b); or
(iii)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.§ 382.2(b).
“Covered Party” has the meaning assigned to it in Section 10.25.
“Credit Card Processor” means any servicing agent, processing agent, factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer or payment procedures with respect to such Credit Party’s sales transactions involving credit card, debit card or other electronic funds transfer (EFT) purchases.
“Credit Date” means the date of a Credit Extension.
“Credit Documents” means, collectively, this Agreement, the Collateral Documents, the Fee Letter, the Intercreditor Agreement and all other documents, certificates, instruments (including any promissory notes issued from time to time hereunder to evidence the
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Loans) and agreements that are expressly designated pursuant to their terms to be “Credit Documents” or are otherwise executed and delivered by or on behalf of any Credit Party or any other Person for the benefit of any Agent or any Lender in connection herewith.
“Credit Extension” means the making of a Loan.
“Credit Party” means each Company and each Guarantor.
“Credit Party Representative” means Holdings, for itself and on behalf of the other Credit Parties in its capacity as Credit Party Representative pursuant to Section 2.24.
“Curation” as defined in the preamble hereto.
“Daily Simple SOFR means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the U.S., any state or territory thereof, the District of Columbia or any other applicable jurisdictions.
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.21(b), any Lender that (i) has failed to (a) fund all or any portion of its Loans within two Business Days after the date such Loans were required to be funded hereunder or (b) pay to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days after the date when due, (ii) has notified Credit Party Representative or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (iii) has failed, within three Business Days after written request by Administrative Agent or Credit Party Representative, to confirm in writing to Administrative Agent and Credit Party Representative that it will comply with its prospective funding obligations hereunder (provided, such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon receipt of such written confirmation by Administrative Agent and Credit Party Representative), or (iv) has, or has a direct or indirect parent company that has, (a) become the subject of a proceeding under any Debtor Relief Law, (b) had appointed for it a receiver, custodian, trustee, conservator, administrator, assignee for the benefit of creditors or similar
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Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (c) has become the subject of a Bail-In Action; provided, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to Credit Party Representative and each Lender.
“Default Rate” means the additional rate of interest payable pursuant to Section 2.9.
“Deposit Account” means any “deposit account” as defined in Article 9 of the UCC.
“Deposit Account Control Agreement” means, with respect to a Deposit Account, an agreement in form and substance reasonably satisfactory to Collateral Agent that (i) is entered into by and among Collateral Agent, the financial institution or other Person at which such Deposit Account is maintained, and the Credit Party maintaining such Deposit Account, and (ii) is effective for Collateral Agent to obtain “control” (within the meaning of Article 9 of the UCC) of such Deposit Account.
“Director” means, with respect to any Person, any natural person constituting a member of the Board of Directors of such Person.
“Dispose” means, with respect to any Person, any conveyance, sale, lease (as lessor), license (as licensor), exchange, assignment, transfer or other disposition by such Person of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of Cash, Cash Equivalents, Securities or any other property or assets. For purposes of clarification, the term “Dispose” shall include (i) the sale or other disposition for value of any contracts, and (ii) the early termination or modification of any contract by any Person resulting in the receipt by such Person of a Cash payment or other consideration in exchange for such event (other than payments in the ordinary course for previously accrued and unpaid amounts due through the date of termination or modification).
“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any other instrument, agreement or Capital Stock into which it is convertible or for which it is exchangeable), or upon the occurrence of any event or condition (i) matures or is mandatorily redeemable (other than solely for Capital Stock that is not otherwise Disqualified Capital Stock), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option
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of the holder or beneficial owner thereof (other than solely for Capital Stock that is not otherwise Disqualified Capital Stock), in whole or in part, (iii) is secured by any assets of Holdings or any of its Subsidiaries, (iv) provides for the scheduled payments of dividends, distributions or other Restricted Junior Payments in Cash, or (v) is or becomes convertible into or exchangeable for Indebtedness or any other obligation, instrument, agreement or Capital Stock that would meet any of the conditions in clauses (i), (ii), (iii) or (iv) of this definition, in each case, prior to the date that is 180 days after the Latest Maturity Date, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior Payment in Full of all Obligations.
“Disqualified Institution” means, on any date, any Person that is a competitor of the Credit Parties, which Person has been designated by Credit Party Representative as a “Disqualified Institution” by written notice to the Administrative Agent not less than three (3) Business Days prior to such date; provided that “Disqualified Institutions” shall exclude (i) any Person that Credit Party Representative has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time and (ii) any Person referred to above, so long as any Event of Default has occurred and is continuing.
“Distribution” as defined in Section 7.7.
“Dollars” and the sign “$” mean the lawful money of the U.S.
“Domestic Subsidiary” means any Subsidiary organized under the laws of the U.S., any state thereof or the District of Columbia.
Early Opt-in Election” means, if the then-current Benchmark is Adjusted LIBO Rate, the occurrence of:
(1)    a notification by the Administrative Agent to (or the request by the Credit Party Representative to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U. S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2)    the joint election by the Administrative Agent and the Credit Party Representative to trigger a fallback from Adjusted LIBO Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.
“Earn-Out Obligations” means contingent payment obligations of the Credit Parties and their Subsidiaries approved by the Administrative Agent in respect of and in accordance with any one or more Permitted Acquisitions consummated after the Closing Date.
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“Earn-Out Subordination Agreement” means any subordination agreement executed by a holder of Earn-Out Obligations in favor of the Administrative Agent from time to time after the Closing Date in form and substance and on terms and conditions satisfactory to the Administrative Agent, which such subordination agreement shall include, at a minimum, contractual subordination.
“EEA Financial Institution” means (i) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (ii) any entity established in an EEA Member Country that is a parent of an institution described in clause (i) of this definition, or (iii) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clause (i) or clause (ii) 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 other Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means (i) in the case of the Term Loans or Term Loan Commitments, (a) any Lender and any Affiliate or Related Fund (other than a Natural Person) of any Lender (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), and (b) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit or buys loans as one of its businesses; provided, with respect to clause (b) of this clause (i), Administrative Agent’s consent shall be required for any such Person to become a Lender; and (ii) any other Person (other than a Natural Person) approved by Credit Party Representative (so long as no Default or Event of Default has occurred and is continuing, it being understood that the Credit Parties shall be deemed to have approved such Person if Credit Party Representative fails to either approve or reject such Person within two Business Days after any request for such approval by Administrative Agent) and Administrative Agent; provided, (a) no Person owning or controlling any trade obligations or Indebtedness of any Credit Party (other than the Obligations) or any Capital Stock of any Credit Party (in each case, other than any Person approved in writing by Administrative Agent) shall, in any event, be an Eligible Assignee and (b) no Disqualified Institution shall be an Eligible Assignee.
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA that is or was sponsored, maintained or contributed to by, or required to be contributed to by, Holdings or any of its Subsidiaries.
“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise) by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in
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connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.
“Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations and other requirements of Governmental Authorities relating to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, or the protection of human, plant or animal health or welfare, in any manner applicable to Holdings or any of its Subsidiaries or any Facility.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means, as applied to any Person, (i) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which such Person is a member; (ii) any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which such Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which such Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of Holdings or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Holdings or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Holdings or such Subsidiary and with respect to liabilities arising after such period for which Holdings or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Holdings, any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition that might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Holdings, any of its Subsidiaries
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or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission that could give rise to the imposition on Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, Taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l) or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to Section 303(k) of ERISA with respect to any Pension Plan.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person).
“Event of Default” means each of the conditions or events set forth in Section 8.1.
“Exchange Act” means the Securities Exchange Act of 1934.
“Excluded Accounts” means (i) payroll, employee benefits or zero balance accounts maintained by the Credit Parties, as long as (a) in the case of payroll accounts, the total amount on deposit at any time does not exceed the current amount of payroll obligations of the Credit Parties, (b) in the case of zero balance accounts, any deposits or funds in any such accounts are transferred at least once each Business Day into a Controlled Account (including, for the avoidance of doubt, at any time following the exercise of exclusive control by any Agent under the applicable control agreement with respect to such Controlled Account), and (ii) any Deposit Account of any Credit Party which holds cash collateral with respect to third party letters of credit or other obligations or Indebtedness permitted to be incurred hereunder, in each case, to the extent the pledge of such Cash is permitted hereunder, (c) accounts of the Mexican Subsidiaries that are maintained in the ordinary course of business, in all cases containing cash amounts that do not exceed at any time $2,000,000 in the aggregate for all such accounts under this clause (c) (so long as, from and after the Mexican Subsidiary Joinder Date, such cash is subject to the First Priority Lien of the Collateral Agent pursuant to the Mexican Subsidiary Security Agreement) and (d) any other Deposit Accounts maintained in the ordinary course of
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business, in all cases containing cash amounts that do not exceed at any time $100,000 for any such account and $250,000 in the aggregate for all such accounts under this clause (d).
“Excluded Swap Obligation” means, with respect to any Guarantor at any time, any obligation (a “Swap Obligation”) of such Guarantor to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act, 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 Lien to secure, such Swap Obligation (or any guarantee thereof) is illegal at such time under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time such guarantee or grant of a Lien becomes effective with respect to such related 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 interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Company under Section 2.22) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.19(c) and (d) any withholding Taxes imposed under FATCA.
“Existing Indebtedness” means Indebtedness and other obligations outstanding under that certain Credit Agreement, dated as of September 23, 2016 by and among Holdings, as borrower, the other Loan Parties (as defined therein) from time to time party thereto, the lenders party from time to time party thereto, and JPMorgan Chase Bank, N.A., as administrative agent thereunder, as in effect on the Closing Date immediately prior to giving effect to any payment of such Indebtedness and other obligations on the Closing Date.
“Extraordinary Receipts” means an amount equal to any Cash received by or paid for the account of Holdings or any of its Subsidiaries outside of the ordinary course of such Person’s business, including any such payments in respect of purchase price adjustments (excluding working capital adjustments), Tax refunds, judgments, settlements for actual or
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potential litigation or similar claims, pension plan reversions, proceeds of insurance and indemnity payments, in each case, determined net of any bona fide direct costs incurred in connection with obtaining such Cash receipts to the extent paid or payable to non-Affiliates (including reasonable, out-of-pocket fees, costs and expenses associated therewith, whether as a result of settlement or otherwise); provided, the term “Extraordinary Receipts” shall not include (i) proceeds of any indemnity payment to the extent that no Event of Default exists at the time of receipt of such proceeds and such proceeds are promptly (and in any event within five Business Days) used to pay related third party claims and expenses, (ii) the Specified Extraordinary Receipts (solely to the extent such Specified Extraordinary Receipts are used to repay then outstanding ABL Indebtedness (which, for the avoidance of doubt, shall not be required to be accompanied by a permanent reduction of ABL Commitments) or (iii) proceeds of the type otherwise subject to Sections 2.13(a) through 2.13(d).
“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of its Subsidiaries or any of their respective predecessors or Affiliates.
“Fair Share” as defined in Section 7.2.
“Fair Share Contribution Amount” as defined in Section 7.2.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FDA” means the U.S. Food and Drug Administration and any successor Governmental Authority.
“FDA Law and Regulation” as defined in the preamble to Section 4.30.
“FDA Permits” as defined in Section 4.30(a).
“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the NYFRB on the next Business Day; provided, (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the preceding Business Day as so published on the next Business Day, and (ii) if no such rate is so published on such next Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to GSSLG or any other Lender selected by Administrative Agent on such day on such transactions as determined by Administrative Agent.
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“Fee Letter” means that certain letter agreement, dated the Closing Date, between GSSLG and Credit Party Representative.
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the Chief Financial Officer of Holdings that, as of the date of such certification, such financial statements fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.
“Financial Plan” as defined in Section 5.1(i).
“First Priority” means, (i) with respect to any Lien purported to be created in any Collateral not consisting of Capital Stock pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Liens, and (ii) with respect to any Lien purported to be created in any Collateral consisting of Capital Stock pursuant to any Collateral Document, that such Lien is the highest priority Lien to which such Collateral is subject, other than any non-consensual Permitted Liens for Taxes, statutory obligations or other obligations that arise and have higher priority by operation of law, in each case subject to the terms of the Intercreditor Agreement.
“Fiscal Quarter” means a fiscal quarter of Holdings of any Fiscal Year.
“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on the last Sunday of May of each calendar year.
“Fixed Charge Coverage Ratio” means the ratio as of the last day of (i) the first Fiscal Quarter ending after the Closing Date of (a) the sum of (I) Consolidated Adjusted EBITDA for such Fiscal Quarter, minus (II) Consolidated Maintenance Capital Expenditures for such period made in accordance with this Agreement, to (b) Consolidated Fixed Charges for such Fiscal Quarter, (ii) the second Fiscal Quarter ending after the Closing Date of (a) the sum of (I) Consolidated Adjusted EBITDA for the two Fiscal Quarters period ending on such date, minus (II) Consolidated Maintenance Capital Expenditures for such period made in accordance with this Agreement, to (b) Consolidated Fixed Charges for such two Fiscal Quarters, (iii) the third Fiscal Quarter period ending after the Closing Date of (a) the sum of (I) Consolidated Adjusted EBITDA for the three Fiscal Quarter period ending on such date, minus (II) Consolidated Maintenance Capital Expenditures for such period made in accordance with this Agreement, to (b) Consolidated Fixed Charges for such three Fiscal Quarter period, and (iv) any other Fiscal Quarter of (a) the sum of (I) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ending, minus (II) Consolidated Maintenance Capital Expenditures for such period, to (b) Consolidated Fixed Charges for such four-Fiscal Quarter period made in accordance with this Agreement.
“Flood Certificate” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.
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“Flood Hazard Property” means any Real Estate Asset subject to a Mortgage in favor of Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
“Flood Program” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004.
“Flood Zone” means areas having special flood hazards as described in the National Flood Insurance Act of 1968.
Floor means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted LIBO Rate.
“Food Laws” means all current or future federal, state, local or foreign (or any subdivision of any of them) statutes, ordinances, orders, rules, regulations, judgments, standards, Governmental Authorizations or any other requirements of Governmental Authorities concerning or relating to matters of food, drink, consumables and related products and the design, development, manufacture, preparation, assembly, packaging, testing, labeling, distribution, transportation, marketing, storage, service or sale of food, drink, consumables or other related or comparable items in any jurisdiction in which Holdings or any of its Subsidiaries have food service or similar operations, including the FDCA, any FDA Law or Regulation, the Food Security Act of 1985, the Federal Trade Commission Act, the Fair Packaging and Labeling Act, the Consumer Product Safety Commission Act, the Poison Prevention Packaging Act and the Food Safety Modernization Act, 21 CFR § Part 111.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fraudulent Transfer Laws” means, collectively, §548 of the Bankruptcy Code, 11 U.S.C. §548, or any applicable provisions of comparable state law.
“Fund” means any Person (other than a Natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities.
“Funding Guarantor” as defined in Section 7.2.
“Funding Notice” means a funding notice substantially in the form of Exhibit A-1.
“GAAP” means, subject to Section 1.2, U.S. generally accepted accounting principles in effect as of the date of determination.
“GCP” as defined in the preamble to Section 4.30.
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“GLP” as defined in the preamble to Section 4.30.
“Goldman Sachs” means Goldman Sachs & Co. LLC.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case, whether associated with a state of the U.S., the U.S. or a foreign entity or government, including without limitation, the FDA.
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“GSSLG” as defined in the preamble hereto.
“Guaranteed Obligations” as defined in Section 7.1.
“Guarantor” means (i) each Company, to the extent that such Company is not already the primary obligor in respect of any particular Obligations, and (ii) each other Person joined as a “Guarantor” to this Agreement after the Closing Date pursuant to Section 5.10. At any time there is only one Person party hereto and to the other Credit Documents as “Guarantor”, all references herein or therein to “a Guarantor”, “any Guarantor”, “each Guarantor” or “Guarantors” shall be deemed to be a reference to such Person.
“Guaranty” means (i) the guaranty of each Guarantor set forth in Section 7, and (ii) each other guaranty of the Obligations that is made by any other Guarantor in favor of Collateral Agent, for the benefit of the Secured Parties.
“Guggenheim” means, collectively, Guggenheim Credit Services, LLC, South Carolina Retirement Systems Group Trust and Private Debt Investors Feeder, LLC.
“Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or that may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.
“Health Care Laws” means all applicable federal and state laws, rules or regulations relating to the regulation, provision or administration of, or payment for, healthcare products or services, including without limitation, (i) the federal Anti‑Kickback Statute (42
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U.S.C. §1320a‑7b(b)), the Federal Civil Monetary Penalty Authority (Sections 1320a‑7 and 1320a‑7a of Title 42 of the United States Code), the Physician Self-Referral Law, commonly known as the “Stark Law” (42 U.S.C. §§ 1395nn and 1396b), the civil False Claims Act (31 U.S.C. § 3729 et seq.), the Federal Criminal False Claims Act (18 U.S.C. § 287), the False Statements Relating to Health Care Matters law (18 U.S.C. § 1035), Health Care Fraud (18 U.S.C. § 1347), or any regulations promulgated pursuant to such statutes, or similar state or local statutes or regulations; (ii) the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104‑191) (“HIPAA”) and the regulations promulgated thereunder and similar state or local statutes or regulations governing the privacy or security of patient information; (iii) the Health Information Technology for Economic and Clinical Health Act (Title XIII) of the American Recovery and Reinvestment Act of 2009 and the regulations promulgated thereunder; (iv) Medicaid (Title XIX of the Social Security Act) and the regulations promulgated thereunder as well as comparable state Medicaid statutes and regulations; (v) TRICARE (10 U.S.C. § 1071 et seq.) and the regulations promulgated thereunder; (vi) the FDCA and the regulations promulgated thereunder; (vii) quality and safety laws, rules or regulations relating to the regulation, storage, provision or administration of, or payment for, healthcare products or services, including prescription products, including but not limited to the FDCA; (viii) the Physician Payments Sunshine Act (Section 6002 of the Patient Protection and Affordable Care Act of 2010, as amended, 42 U.S.C. § 1320-7h) and any other federal or state disclosure, transparency or “Sunshine” law; (ix) laws governing the provision of services to employees with workers compensation coverage or licensure or certification as a healthcare organization to provide such services; (x) federal and state medical and pharmacy practice Laws and pharmacology and controlled substances laws, including the Federal Controlled Substances Act (21 U.S.C. §§ 801, et seq.); and (xi) licensure laws, rules or regulations relating to the regulation, provision or administration of, or payment for, healthcare items, services or goods and the ownership or operation of medical equipment, supplies or accessories, each of (i) through (x) as amended from time to time.
“Hedge Agreement” means any Interest Rate Agreement, and any other derivative or hedging contract, agreement, confirmation or other similar transaction or arrangement that is entered into by Holdings or any of its Subsidiaries, including any commodity or equity exchange, swap, collar, cap, floor, adjustable strike cap, adjustable strike corridor, cross-currency swap or forward rate agreement, spot or forward foreign currency or commodity purchase or sale, listed or over-the-counter option or similar derivative right related to any of the foregoing, non-deliverable forward or option, foreign currency swap agreement, currency exchange rate price hedging arrangement or other arrangement designed to protect against fluctuations in interest rates or currency exchange rates, commodity, currency, or Securities values or any combination of the foregoing agreements or arrangements.
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged or received under the laws applicable to any Lender that are in effect as of the Closing Date or, to the extent allowed by law, under such applicable laws that may be in effect after the Closing Date and allow a higher maximum nonusurious interest rate than applicable laws in effect as of the Closing Date.
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“Historical Financial Statements” means, as of the Closing Date, (i) the audited financial statements of Holdings and its Subsidiaries for the Fiscal Year ended May 31, 2020, consisting of consolidated and consolidating balance sheets and the related consolidated and consolidating statements of income, stockholders’ equity and cash flows for such Fiscal Year, and (ii) for the interim period from June 1, 2020 to the Closing Date, the unaudited financial statements of Holdings and its Subsidiaries, consisting of consolidated and consolidating balance sheets and the related consolidated and consolidating statements of income, stockholders’ equity and cash flows for each quarterly period completed on or prior to October 31, 2020, in the case of clauses (i) and (ii), certified by the Chief Financial Officer of Credit Party Representative that they fairly present, in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year-end adjustments.
“Holdings” as defined in the preamble hereto.
“Immaterial Fee-Owned Property” means, as of any date of determination, any (i) individual fee-owned Real Estate Asset having a fair market value less than $2,000,000 and (ii) fee-owned Real Estate Assets having a fair market value less than $4,000,000 in the aggregate; provided, notwithstanding the foregoing, any fee-owned Real Estate Asset designated as a Material Real Estate Asset pursuant to clause (iii) of the definition thereof and any fee-owned Real Estate Asset set forth on Schedule 1.1(b) shall not constitute “Immaterial Fee-Owned Properties”.
“Increased-Cost Lender” as defined in Section 2.22.
“Indebtedness”, as applied to any Person, means, without duplication, (i) all indebtedness for borrowed money; (ii) Capital Lease Obligations; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA and any trade payable incurred in the ordinary course of business unless (a) due more than 90 days from the date of incurrence of the obligation in respect thereof, or (b) such obligation is evidenced by a note or a similar written instrument); (v) all indebtedness secured by any Lien on any property or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall have been assumed by such Person or is nonrecourse to the credit of such Person; (vi) the face amount of any letter of credit or similar instrument issued for the account of (or similar credit transaction entered into for the benefit of) such Person or as to which such Person is otherwise liable for reimbursement of drawings or is otherwise an obligor; (vii) Disqualified Capital Stock; provided, the amount of Indebtedness represented by such Disqualified Capital Stock shall be deemed to be equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price (for purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this
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Agreement, and as if such price were based upon, or measured by, the fair market value of such Disqualified Capital Stock); (viii) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another; (ix) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (x) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or provide any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under clause (a) or (b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix) above; (xi) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including under any Hedge Agreement, in each case, whether entered into for hedging or speculative purposes or otherwise; provided, the “principal” amount of obligations under any Hedge Agreement that has not been terminated shall be deemed to be the Net Mark-to-Market Exposure of Holdings and its Subsidiaries thereunder; (xii) any obligations consisting of accounts payable or other monetary liabilities that do not fall into the foregoing categories of Indebtedness but are overdue more than 90 days; and (xiii) all Assumed Indebtedness.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), actions, judgments, suits, costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), Indemnified Taxes, expenses and disbursements of any kind or nature whatsoever (including attorneys’ fees and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect, special or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out (i) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from or other realization upon any of the Collateral or the enforcement of the Guaranty)); (ii) the statements contained in the any Environmental Claim or Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Holdings or any of its Subsidiaries.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Companies under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
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“Indemnitee” means each Agent (including, as applicable, in its capacity as a non-fiduciary agent under Section 2.6) and each Lender, and each of their respective affiliates, officers, partners, members, Directors, trustees, employees, managers, advisors, consultants, administrators, agents and sub-agents.
“Indemnitee Agent Party” as defined in Section 9.6.
“Initial Term Loan” means a term loan made by a Lender to Companies pursuant to Section 2.1(a)(i).
“Initial Term Loan Commitment” means the commitment of a Lender to make or otherwise fund an Initial Term Loan, and “Initial Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Initial Term Loan Commitment, if any, is set forth on Appendix A-1, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Initial Term Loan Commitments as of the Closing Date immediately prior to giving effect to the funding of the Initial Term Loans is $150,000,000.
“Initial Term Loan Exposure” means, with respect to any Lender, as of any time of determination, the outstanding principal amount of the Initial Term Loans of such Lender; provided, at any time prior to the making of the Initial Term Loans, the Initial Term Loan Exposure of any Lender shall be equal to such Lender’s Initial Term Loan Commitment.
“Installment” as defined in Section 2.11(a).
“Insurance/Condemnation Reinvestment Amounts” as defined in Section 2.13(b).
“Insurance/Condemnation Reinvestment Period” as defined in Section 2.13(b).
“Intellectual Property” as defined in the Pledge and Security Agreement.
“Intellectual Property Security Agreement” means a short-form security agreement with respect to the Intellectual Property of any Credit Party in form and substance reasonably satisfactory to Collateral Agent.
“Intercompany Note and Subordination” means a “global” intercompany promissory note and subordination that evidences and subordinates certain Indebtedness and other monetary liabilities owed among Credit Parties and their Subsidiaries, in form and substance satisfactory to Administrative Agent.
“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Closing Date, by and among Collateral Agent, ABL Agent and the Credit Parties.
“Interest Payment Date” means (i) with respect to any Base Rate Loan, (a) the last day of each month, commencing on the first such date to occur after the Closing Date, and
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(b) the final maturity date of such Loan; and (ii) with respect to any LIBO Rate Loan, (a) the last day of each Interest Period applicable to such Loan (provided, in the case of any Interest Period longer than three months, the term “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period, and (b) the final maturity date of such Loan.
“Interest Period” means, in connection with a LIBO Rate Loan, an interest period of one-, two-, three- or six-months, as selected by Credit Party Representative in the applicable Notice, (i) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on (and including) the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clauses (c) and (d) of this definition, end on the last Business Day of a calendar month; and (c) no Interest Period with respect to any portion of the Term Loans shall extend beyond the Term Loan Maturity Date.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is (i) for the purpose of hedging or managing the interest rate exposure associated with Holdings’ and its Subsidiaries’ operations, (ii) approved by Administrative Agent, and (iii) not for speculative purposes.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
“Internal Revenue Code” means the Internal Revenue Code of 1986.
“Internally Generated Cash” means, with respect to any period, any Cash of Holdings or any of its Subsidiaries generated during such period as a result of such Person’s operations, excluding Net Asset Sale Proceeds and the proceeds of Asset Sales of ABL Priority Collateral, Net Insurance/Condemnation Proceeds, Extraordinary Receipts, Net Equity Proceeds, Net Debt Proceeds (other than Cash proceeds of revolving loans under the ABL Loan Agreement) and any other Cash that is generated from an incurrence of Indebtedness or any other liability (other than Cash proceeds of revolving loans under the ABL Loan Agreement).
“Investment” means (i) any direct or indirect purchase or other acquisition by Holdings or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person, including the establishment or other creation of a Subsidiary or any other interest in the Securities of any Person, and any other Acquisition; (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by Holdings or any of its Subsidiaries from any Person, of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for customary moving, entertainment and travel expenses,
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drawing accounts and similar expenditures in the ordinary course of business and consistent with past practice) or capital contributions by Holdings or any of its Subsidiaries to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales of inventory to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.
ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any Wholly-Owned Subsidiary of any Person be considered to be a “Joint Venture” to which such Person is a party.
“Junior Priority” means, (i) with respect to any Lien purported to be created in any Collateral (other than ABL Priority Collateral) not consisting of Capital Stock pursuant to any ABL Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than (I) the Lien of Collateral Agent hereunder for the benefit of the Secured Parties on the Collateral as security for the Obligations in accordance with the Intercreditor Agreement and (II) any Permitted Liens, and (ii) with respect to any Lien purported to be created in any Collateral consisting of Capital Stock pursuant to any ABL Collateral Document, that such Lien is the highest priority Lien to which such Collateral is subject, other than (I) the Lien of Collateral Agent hereunder for the benefit of the Secured Parties on the Collateral as security for the Obligations in accordance with the Intercreditor Agreement and (II) any non-consensual Permitted Liens for Taxes, statutory obligations or other obligations that arise and have higher priority by operation of law.
“Key Performance Indicator Report” means a monthly report as mutually agreed by Administrative Agent and Companies.
“Latest Maturity Date” means, as of any time of determination, the latest possible maturity or expiration date applicable to any Loan or Commitment hereunder at such time, in each case, as extended in accordance with this Agreement from time to time, as the case may be.
“Leasehold Property” means any leasehold interest of any Credit Party as lessee under any lease of real property.
“Lender” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.
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“Lender Counterparty” means each Lender, each Agent, and each of their respective Affiliates, in each case that is a counterparty to a Hedge Agreement (including any Person that is a Lender or an Agent (or any Affiliate of a Lender or an Agent) as of the Closing Date but subsequently, whether before or after entering into such Hedge Agreement, ceases to be an Agent or a Lender or any Affiliate of an Agent or a Lender, as the case may be); provided, that at any time a Lender is a Defaulting Lender and such Lender or its Affiliate enters into a Hedge Agreement, such Lender or Affiliate shall be deemed not to be a Lender Counterparty for purposes of such Hedge Agreement so long as such Lender is a Defaulting Lender.
“Leverage Incurrence Multiple” means, as of any date of determination during the periods set forth below, the correlative multiple set forth opposite such period below:
Fiscal QuarterLeverage Incurrence Multiple
Closing Date until February 28, 20226.75
March 1, 2022 through August 31, 20226.50
September 1, 2022 and thereafter6.25

“Leverage Ratio” means, as of any date of determination, the ratio of (i) the Consolidated Funded Debt as of such date, to (ii) Consolidated Adjusted EBITDA for the fourFiscal Quarter period ending on such date (or, if such date of determination is not the last day of a Fiscal Quarter in respect of which financial statements and a Compliance Certificate are being delivered, for the four-Fiscal Quarter period ending as of the most recently concluded Fiscal Quarter for which financial statements have previously been or were required to be delivered).
“LIBO Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.
“Lifecore” as defined in the preamble hereto.
“Loan” means, as the context requires, an Initial Term Loan or a Multi-Draw Term Loan.
“Margin Stock” as defined in Regulation U.
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“Material Adverse Effect” means any material adverse effect on or material adverse developments with respect to (i) the business operations, properties, assets, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole; (ii) the ability of any Credit Party to fully and timely perform its Obligations; (iii) the legality, validity, binding effect, or enforceability against any Credit Party of any Credit Document to which it is a party; (iv) the validity, perfection or priority of any Lien in favor of Collateral Agent, for the benefit of the Secured Parties, on the Collateral taken as a whole; or (v) the rights, remedies and benefits available to, or conferred upon, any Agent, any Lender or any other Secured Party under any Credit Document.
“Material Contract” means any and all contracts or other arrangements to which Holdings or any of its Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect, including those contracts and arrangements that are listed on Schedule 4.16.
“Material Indebtedness” means (a) ABL Indebtedness, and (b) Indebtedness (other than the Obligations) of any Company or any of its Subsidiaries with an individual principal amount of $2,000,000 or more or, solely for purposes of Section 8.1(b), that, collectively with any other Indebtedness in respect of which any relevant default or other specified event has occurred, has an aggregate principal amount of $5,000,000 or more.
“Material Real Estate Asset” means any and all of the following: (i) all fee-owned Real Estate Assets other than any Immaterial Fee-Owned Properties (ii) any Real Estate Asset at which Lifecore or any of its Subsidiaries is manufacturing pharmaceutical products, (iii) any Real Estate Asset which serves as a chief executive office for any Credit Party and (iv) any Real Estate Asset listed on Schedule 1.1(b).
“Maximum Credit Amount” means, at any time of determination, an amount equal to the product of (i) Consolidated Adjusted EBITDA of Holdings and its Subsidiaries for the 12 months ending as of the last day of the most recently ended month for which financial statements have been or were required to be delivered pursuant to Section 5.1(a), multiplied by (ii) the Leverage Incurrence Multiple in effect at such time. The Maximum Credit Amount shall be determined on a Pro Forma Basis.
Mexican Subsidiaries” means (a) Tanok and (b) Tanokatan.
Mexican Subsidiary Joinder Date” has the meaning assigned to such term in Section 5.10(b).
Mexican Subsidiary Security Agreement” has the meaning assigned to such term in Section 5.10(b).
Mexican Subsidiary Reorganization Activities” means (a) the conversion of Tanok into a Mexican maquiladora and (b) the conversion of Tanokatan into a Mexican operating entity.
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“Moody’s” means Moody’s Investors Service, Inc., or any successor to its rating agency business.
“Mortgage” means a mortgage, deed of trust, or similar instrument in form and substance reasonably acceptable to Collateral Agent.
“Mortgaged Real Estate Documents” means, with respect to each fee-owned Real Estate Asset that is required to be subject to a Mortgage pursuant to this Agreement:
(i)    one or more fully executed and notarized Mortgages encumbering such Real Estate Asset, in each case, in proper form for recording in all appropriate places in all applicable jurisdictions;
(ii)    (a) ALTA mortgagee title insurance policies or, solely to the extent that Collateral Agent in its sole discretion waives the requirement for a policy to be issued, unconditional commitments therefor, in each case, issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to such Real Estate Asset (each, a “Title Policy”), each Title Policy to be in amounts not less than the fair market value of such Real Estate Asset as reasonably determined by Borrower, together with a title report with respect thereto reasonably satisfactory to Collateral Agent issued by such title companies and dated not more than 60 days prior to the date of the applicable Mortgage, (b) complete and accurate copies of all documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent, and (c) evidence satisfactory to Collateral Agent that such Credit Party has paid to such title companies or to the appropriate Governmental Authorities all expenses and premiums of such title companies and all other sums required in connection with the issuance of each Title Policy and all recording and stamp Taxes (including mortgage recording and intangible Taxes) payable in connection with recording the Mortgages for such Real Estate Asset in the appropriate real estate records;
(iii)    (a) a completed Flood Certificate with respect to such Real Estate Asset, which Flood Certificate shall (I) be addressed to Collateral Agent, (II) otherwise comply with the Flood Program and (III) be in form and substance satisfactory to Collateral Agent in its reasonable discretion; (b) if the Flood Certificate indicates that such Real Estate Asset is located in a Flood Zone, the applicable Credit Party’s written acknowledgment of receipt of written notification from Collateral Agent (I) as to the existence of such Real Estate Asset in a Flood Zone and (II) as to whether the community in which such Real Estate Asset is located is participating in the Flood Program; and (c) if such Real Estate Asset is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Credit Party has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program or, solely to the extent agreed to by Collateral Agent in its sole discretion, excluded any structures existing in such Flood Zone from any such Mortgage in a manner satisfactory to Collateral Agent in its sole discretion;
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(iv)    ALTA surveys of such Real Estate Asset, either (A) certified to Collateral Agent and dated not more than 30 days prior to the date of the applicable Mortgage and otherwise in form and substance reasonably satisfactory to Collateral Agent or (B) confirmed by the Credit Party Representative or the owner of such Real Estate Asset by a survey affidavit satisfactory to the title company providing the Title Policy insuring the Mortgage on such Real Estate Asset to be an accurate representation of the current status of such Real Estate Asset such that the title company may delete the standard survey exceptions from the Title Policy;
(v)    an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in the state in which such Real Estate Asset is located with respect to the enforceability of the Mortgage(s) to be recorded in such state and such other matters as Collateral Agent may reasonably request, in form and substance reasonably satisfactory to Collateral Agent; and
(vi)    reports and other information, in each case, in form, scope and substance reasonably satisfactory to Administrative Agent, regarding environmental matters relating to such Real Estate Asset, including any Phase I Report requested by Collateral Agent with respect to such Real Estate Asset.
“Multi-Draw Commitment Period” means the period from the Closing Date through and including the Multi-Draw Commitment Termination Date.
“Multi-Draw Commitment Termination Date” means the earliest to occur of (i) December 31, 2022, (ii) the date the Multi-Draw Term Loan Commitments are permanently reduced to zero pursuant to Section 2.12(b) or 2.14; and (iii) the date of the termination of the Multi-Draw Term Loan Commitments pursuant to Section 2.13(i) or Section 8.1.
“Multi-Draw Term Loan” means a term loan made by a Lender to Companies pursuant to Section 2.1(a)(ii).
“Multi-Draw Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Multi-Draw Term Loan and “Multi-Draw Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Multi-Draw Term Loan Commitment, if any, is set forth on Appendix A-2 or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Multi-Draw Term Loan Commitments as of the Closing Date is $20,000,000.
“Multi-Draw Term Loan Exposure” means, with respect to any Lender, as of any time of determination, the sum of (i) the outstanding principal amount of the Multi-Draw Term Loans of such Lender, plus (ii) the amount of such Lender’s unused Multi-Draw Term Loan Commitment.
“Multiemployer Plan” means any Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA.
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“Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of Holdings and its Subsidiaries in the form prepared for presentation to senior management thereof for the applicable month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate with comparison to and variances from the immediately preceding period and budget.
“Natural Person” means a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person.
“Net Asset Sale Proceeds” means, with respect to any Asset Sale an amount equal to (i) Cash payments received by Holdings or any of its Subsidiaries from such Asset Sale of Term Loan Priority Collateral (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise (including by way of a milestone payment, as applicable), but only as and when so received), minus (ii) any bona fide direct costs incurred in connection with such Asset Sale of Term Loan Priority Collateral to the extent paid or payable to non-Affiliates, including (a) income or gains Taxes payable by Holdings or any of its Subsidiaries as a result of any gain recognized in connection with such Asset Sale of Term Loan Priority Collateral during the Tax period the sale occurs, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Permitted Lien on the Capital Stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale of Term Loan Priority Collateral, and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Holdings or any of its Subsidiaries in connection with such Asset Sale of Term Loan Priority Collateral; provided, upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds. To the extent that any Asset Sale consists of both Term Loan Priority Collateral and ABL Priority Collateral, the Net Asset Sale Proceeds in respect of such Asset Sale shall be determined in accordance with Section 4.3 of the Intercreditor Agreement. Upon the Payment in Full of the ABL Priority Debt (as defined in the Intercreditor Agreement), each reference in the first sentence of this definition to “Asset Sale of Term Loan Priority Collateral” shall thereafter be deemed to be a reference to “Asset Sale”.
“Net Debt Proceeds” means an amount equal to any Cash proceeds from the incurrence of any Indebtedness of Holdings or any of its Subsidiaries (other than any Cash proceeds received with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1), net of underwriting discounts and commissions and other reasonable, out-of-pocket costs and expenses associated therewith, including reasonable legal fees and expenses, in each case, solely to the extent such discounts, commissions, costs, fees and expenses are paid to non-Affiliates.
“Net Equity Proceeds” means an amount equal to any Cash proceeds from a capital contribution to, or the issuance of any Capital Stock of, Holdings or any of its Subsidiaries (other than pursuant to any employee stock or stock option compensation plan), net
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of underwriting discounts and commissions and other reasonable, out-of-pocket costs and expenses associated therewith, including reasonable legal fees and expenses, in each case, solely to the extent such discounts, commissions, costs, fees and expenses are paid to non-Affiliates.
“Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or proceeds received by Holdings or any of its Subsidiaries in respect of any Term Loan Priority Collateral (a) under any casualty, business interruption or “key man” insurance policies in respect of any covered loss thereunder, or (b) as a result of the taking of any assets of Holdings or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by Holdings or any of its Subsidiaries in connection with the adjustment or settlement of any claims of Holdings or such Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition to the extent paid or payable to non-Affiliates, including income or gains Taxes payable by Holdings or any of its Subsidiaries as a result of any gain recognized in connection therewith during the Tax period the Cash payments or proceeds are received. To the extent that any of the events described in clause (i) of the first sentence of this definition involve both Term Loan Priority Collateral and ABL Priority Collateral, the Net Insurance/Condemnation Proceeds in respect of such event shall be determined in accordance with Section 4.3 of the Intercreditor Agreement. Upon the Payment in Full of the ABL Priority Debt (as defined in the Intercreditor Agreement), the reference in the first sentence of this definition to “in respect of any Term Loan Priority Collateral” shall thereafter be deemed to be deleted.
“Net Mark-to-Market Exposure” of a Person means, as of any time of determination, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Hedge Agreements or other Indebtedness of the type described in clause (xi) of the definition thereof. As used in this definition, “unrealized losses” means the fair market value of the cost to such Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination (assuming such Hedge Agreement or such other Indebtedness were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination (assuming such Hedge Agreement or such other Indebtedness were to be terminated as of that date).
“Non-Consenting Lender” as defined in Section 2.22.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Notice” means a Funding Notice or a Conversion/Continuation Notice.
“NYFRB” means the Federal Reserve Bank of New York.
“Obligation Aggregate Payments” as defined in Section 2.23(b).
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“Obligation Fair Share” as defined in Section 2.23(b).
“Obligation Fair Share Contribution Amount” as defined in Section 2.23(b).
“Obligation Fair Share Shortfall” as defined in Section 2.23(b).
“Obligations” means all obligations (whether now existing or hereafter arising, absolute or contingent, joint, several or independent) of every nature of each Credit Party from time to time owed to the Agents (including former Agents), the Lenders and the Lender Counterparties (or any of the foregoing Persons) under any Credit Document or Secured Hedge Agreement, whether for principal, interest (including interest that, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), payments for early termination of Secured Hedge Agreements, fees, expenses, indemnification or otherwise, in each case, excluding, with respect to any Guarantor, Excluded Swap Obligations with respect to such Guarantor.
“Obligee Guarantor” as defined in Section 7.7.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury and any successor Governmental Authority.
“Organizational Documents” means (i) with respect to any corporation or company, its certificate, memorandum, or articles of incorporation or organization, and its bylaws, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership and its partnership agreement, (iii) with respect to any general partnership, its partnership agreement, (iv) with respect to any limited liability company, its certificate or articles of organization or formation and its operating agreement or limited liability company agreement, and (v) in each case, any shareholders agreement, voting agreement, proxy or similar agreement with respect to Capital Stock issued by such Person. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such Organizational Document shall only be to a document of a type customarily certified by such governmental official.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).
“Other Taxes” means any and all present or future stamp, court, intangible, recording, filing, documentary, excise, property or similar Taxes (and interest, fines, penalties and additions related thereto) arising from any payment made hereunder or from the execution,
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delivery or enforcement of, or with respect to, this Agreement or any other Credit Document except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“PACA” means the Perishable Agriculture Commodities Act, 1930.
“PASA” means the Packers and Stockyard Act, 1921.
“Paid in Full” and “Payment in Full” mean, with respect to any or all of the Obligations, Guaranteed Obligations or ABL Indebtedness, as the context requires, that each of the following events has occurred, as applicable: (i) the indefeasible payment or repayment in full in immediately available funds of (a) the principal amount of all outstanding Loans or ABL Loans, as the case may be, (b) all accrued and unpaid interest, fees, premiums or other charges owing in respect of any Loan, Commitment, or any ABL Loan, or otherwise under any Credit Document or any ABL Credit Document, as the case may be, and (c) all accrued and unpaid costs and expenses payable by any Credit Party to any Agent, any Lender, the ABL Agent or any ABL Lender, pursuant to any Credit Document or any ABL Credit Document, as the case may be, whether or not demand has been made therefor, including any and all indemnification and reimbursement claims that have been asserted by any such Person prior to such time, (ii) the indefeasible payment or repayment in full in immediately available funds of all other outstanding Obligations, Guaranteed Obligations, or ABL Indebtedness other than unasserted contingent indemnification and contingent reimbursement obligations, (iii) the termination in writing of all of the Commitments or ABL Indebtedness, as the case may be, (iv) the termination in writing, expiration, cash collateralization, novation, unwinding or rollover of all Secured Hedge Agreements to the satisfaction of the applicable Lender Counterparties in their respective sole discretion, and (v) receipt by Administrative Agent and the ABL Agent, as the case may be, of a release from the Credit Parties in favor of the Secured Parties in form and substance satisfactory to Administrative Agent or the ABL Agent, as the case may be.
“Participant Register” as defined in Section 10.6(h)(i).
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
“Permitted Acquisition” means any Acquisition by a Credit Party so long as:
(a)    the Person to be (or whose assets are to be) acquired does not oppose such Acquisition and the division or line or lines of business of the Person to be acquired constitute any material line of business conducted by the Credit Parties as of the Closing Date and any business related thereto or any reasonable extensions thereof;
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(b)    the cost of such Acquisition (including cash and other property given as consideration, any Indebtedness assumed or acquired by any Credit Party or any Subsidiary in connection with such Acquisition, and all additional purchase price amounts in the form of earnouts and other contingent obligations calculated at the maximum amount thereof) does not exceed $2,000,000 individually and $5,000,000 when aggregated with all other Acquisitions consummated during the term of this Agreement;
(c)    in the event such Acquisition includes any Capital Stock or other evidence of beneficial ownership of any Person, all of the Capital Stock (except for any such Capital Stock in the nature of Directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued by such Person or any newly formed Credit Party in connection with such Acquisition shall be owned 100% by a Credit Party, and the Credit Parties shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of a Credit Party, each of the actions set forth in Sections 5.10, 5.11 and 5.13, as applicable;
(d)    prior to or simultaneously with the closing of such Acquisition, the provisions of Section 5.10 have been satisfied;
(e)    after giving effect to such Acquisition on a Pro Forma Basis and the costs related thereto (including cash and other property (other than Capital Stock or options to acquire Capital Stock of any Credit Party) given as consideration, any Indebtedness incurred, assumed or acquired by any Credit Party or any Subsidiary thereof in connection with such Acquisition, all additional purchase price amounts in the form of earnouts and other contingent obligations calculated at the maximum amount thereof, and all fees expenses and transaction costs incurred in connection therewith), Companies shall be in compliance with the financial covenants set forth in Section 6.8;
(f)    Credit Party Representative shall have furnished to the Administrative Agent at least five (5) Business Days prior to the date on which any such Acquisition is to be consummated or such shorter time as Administrative Agent may allow, a certificate of an officer of Companies, in form and substance reasonably satisfactory to the Administrative Agent, (i) certifying that all of the requirements set forth in this definition will be satisfied on or prior to the consummation of such Acquisition and (ii) a reasonably detailed calculation of item (d) above (and such certificate shall be updated as necessary to make it accurate as of the date the Acquisition is consummated);
(g)    the Person to be (or whose assets are to be) acquired (i) is organized under the laws of, and substantially all its assets (or the assets of such division or line of business, as the case may be) are located in, the United States of America, any State thereof, the District of Columbia or Canada and (ii) for the four-Fiscal Quarter period most recently ended prior to the date of such Acquisition, shall have generated earnings before income Taxes, depreciation and amortization during such period that shall be great than $0.00 during such period (calculated in a manner substantially consistent as “Consolidated Adjusted EBITDA”); and
(h)    Credit Party Representative shall have furnished the Administrative Agent with ten (10) days’ prior written notice of such intended Acquisition and shall have furnished the
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Administrative Agent with a current draft of the applicable acquisition documents (and final copies thereof as and when executed), and to the extent available, appropriate financial statements and quality of earnings report of the Person which is the subject of such Acquisition, pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income statements by month for the acquired Person, individually, and on a Consolidated basis with all Credit Parties), and, to the extent available, such other information as the Administrative Agent may reasonably request.
“Permitted Capital Stock Issuances” means the issuance by Holdings of Capital Stock (other than Disqualified Capital Stock); provided, (i) no Event of Default has occurred or is continuing at the time of such issuance (or will be caused thereby), (ii) the use of the Net Equity Proceeds thereof in accordance with clause (iii) is permitted under the ABL Credit Agreement, and (iii) such Net Equity Proceeds are used solely to fund Consolidated Capital Expenditures of Holdings and its Subsidiaries in an aggregate amount not to exceed the maximum amount of Consolidated Capital Expenditures permitted in accordance with Section 6.8(e).
“Permitted Curation Sale” means the sale, transfer or other disposition, in one transaction or a series of transactions, of (i) 100% of the Capital Stock of Curation and/or one or more of its Subsidiaries, (ii) all or substantially all of the assets of Curation and/or one or more of its Subsidiaries or (iii) one or more divisions, lines of business or business units of Curation and/or one or more of its Subsidiaries, in each case to a non-Affiliate; provided; at least 90% of the consideration for such sale, transfer or other disposition in this clause (iii) that is payable at the closing of such transaction or as a result of customary post-closing purchase price adjustments shall consist of Cash paid upon the closing of such transaction or at such later date when such purchase price adjustment is due, as the case may be; provided, the Credit Parties notify Administrative Agent in writing (which may be by means of an Approved Electronic Communication) of such proposed sale, transfer, disposition at least ten (10) Business Days prior to the proposed closing date of such sale, transfer, disposition and all Net Asset Sale Proceeds are applied in accordance with Section 2.13(a).
“Permitted Liens” means, collectively, the Liens permitted pursuant to Section 6.2.
Permitted Tax Distributions” for any taxable period in which Holdings and its Subsidiaries are members of a consolidated, combined or similar income tax group of which Holdings is the common parent (a “Tax Group”), distributions by Holdings or any such Subsidiary thereof to Holdings to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of Holdings and its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that Holdings and its Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by Holdings and its Subsidiaries.
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“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts and other organizations, whether or not legal entities, and Governmental Authorities.
“Phase I Report” means, with respect to any Facility, a report that (i) conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, E1527 and (ii) was conducted no more than six months prior to the date such report is required to be delivered hereunder, by one or more environmental consulting firms reasonably satisfactory to Administrative Agent.
“Platform” as defined in Section 10.1(b).
“Pledge and Security Agreement” means that certain Pledge and Security Agreement, dated as of the Closing Date, by and among each Credit Party and Collateral Agent.
“Prime Rate” means, for any day, the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 70% of the nation’s 10 largest banks), as in effect from time to time, or, if such source or rate is unavailable, any replacement or successor source or rate as determined by Administrative Agent. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Administrative Agent or any Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
“Principal Office” means, Administrative Agent’s “Principal Office” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to Credit Party Representative, Administrative Agent and, as applicable, each Lender; provided, for the purpose of making any payment on the Obligations or any other amount due hereunder or under any other Credit Document, the Principal Office of Administrative Agent shall be 200 West Street, New York, New York, 10282 (or such other location within the City and State of New York as Administrative Agent may from time to time designate in writing to Credit Party Representative and each Lender); provided, further, all wires to Administrative Agent shall be made to the wiring instructions provided by Administrative Agent in writing from time to time.
“Privacy Laws” means, collectively, (i) all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective relating in any way to the privacy, confidentiality or security of personal information, including (a) laws imposing minimum information security requirements (such as Cal. Civ. Code § 1798.81.5 and 201 Mass. Code Reg. 17.00); (b) laws requiring the secure disposal of records containing certain personal information (such as N.Y. Gen. Bus. Law § 399 H); (c) the European Union (General Data Protection Regulation 2016/679 and European Union Member State laws supplemental thereto and the EU Directive 2002/58/EC; (d) the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) and
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relevant provincial laws; (e) the California Consumer Privacy Act of 2018 (CCPA) (Cal. Civ. Code §§ 1798.100 to 1798.199) and all implementing regulations with respect thereto; (f) Section 5 of the Federal Trade Commission Act and any other unfair trade practice laws of any Governmental Authority; (g) the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801-6827, and all regulations implementing the same; (h) the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., as amended by the Fair and Accurate Credit Transactions Act, and all implementing regulations with respect hereto; (i) Health Insurance Portability and Accountability Act of 1996 (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C.) and all implementing regulations with respect thereto; (j) the Controlling the Assault of Non-Solicited Pornography and Marketing Act; (k) the Telephone Consumer Protection Act of 1991; (l) the rules and regulations of the National Automated Clearing House Association, information security breach notification laws (such as Cal. Civ. Code §§ 1798.29, 1798.82 - 1798.84); and (m) all other similar international, federal, state, provincial, municipal and local requirements; and (ii) all applicable industry standards concerning privacy, data protection, confidentiality or information security, in each case, to the extent such laws, rules, regulations, directives and governmental requirements and such industry standards are applicable to Holdings, any of its Subsidiaries, their respective property or their respective business.
“Pro Forma Basis” means a calculation giving pro forma effect to (i) the adjustments related to Subject Transactions described in the definition of the terms “Consolidated Adjusted EBITDA” and “Consolidated Fixed Charges”, as applicable, and (ii) when used with respect to determining the permissibility of any specific transaction hereunder, such specific transaction as if it were a Subject Transaction.
“Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Initial Term Loan of any Lender, the percentage obtained by dividing (a) the Initial Term Loan Exposure of that Lender, by (b) the aggregate Initial Term Loan Exposure of all Lenders; and (ii) with respect to all payments, computations and other matters relating to the Multi-Draw Term Loan of any Lender, the percentage obtained by dividing (a) the Multi-Draw Term Loan Exposure of that Lender, by (b) the aggregate Multi-Draw Term Loan Exposure of all Lenders. For all other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (I) an amount equal to the sum of the Initial Term Loan Exposure and the Multi-Draw Term Loan Exposure, by (II) an amount equal to the sum of the aggregate Initial Term Loan Exposure and the aggregate Multi-Draw Term Loan Exposure.
“Projections” as defined in Section 4.8.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 10.25.
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“Qualified Cash” means, at any time of determination, the aggregate balance sheet amount of unrestricted Cash and, to the extent readily monetized, Cash Equivalents included in the consolidated balance sheet of Holdings and its Subsidiaries as of such time that (i) is free and clear of all Liens other than Liens in favor of Collateral Agent, for the benefit of the Secured Parties, and non-consensual Permitted Liens, (ii) may be applied to payment of the Obligations without violating any law, contract, or other agreement, (iii) is in Controlled Accounts, and (iv) is not Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds, Net Equity Proceeds or Net Debt Proceeds.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred 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.
“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Credit Party in any real property.
“Recipient” means (a) the Administrative Agent, or (b) any Lender.
Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Adjusted LIBO Rate, 11:00 a. m. (London time) on the day that is two London banking days preceding the date of such setting and (2) if such Benchmark is not the Adjusted LIBO Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Register” as defined in Section 2.6(b).
“Regulation D” means Regulation D of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Regulation T” means Regulation T of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Related Fund” means any Fund, investor, entity or account that is managed, sponsored, advised, or administered by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or affiliate of an entity that manages, administers, or advises a Lender, including any limited partner or investor in any of the foregoing persons or entities described in clauses (a) or (b).
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“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
Relevant Governmental Body means the Board of Governors or the NYFRB, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the NYFRB, or any successor thereto.
“Replacement Lender” as defined in Section 2.22.
“Requisite Lenders” means, at any time of determination, one or more Lenders having or holding more than 50% of the aggregate Voting Power Determinants of all Lenders; provided, (i) the amount of Voting Power Determinants of any Defaulting Lender shall be disregarded for purposes of this definition (including clause (ii) of this proviso), and (ii) to the extent that the total number of Lenders (treating all Lenders that are Affiliates as a single Lender) is greater than one, solely for purposes of any requested consent, waiver, amendment, or other modification requiring the affirmative vote of “Requisite Lenders” (but, for the avoidance of doubt, not for the purpose of exercising or enforcing any rights and remedies available under any Credit Document or applicable law), “Requisite Lenders” shall also include at least two (treating all Lenders that are Affiliates as a single Lender) Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Junior Payment” means (i) any dividend, other distribution or liquidation preference, direct or indirect, on account of any shares of Capital Stock of Holdings or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in shares of Capital Stock (other than any Disqualified Capital Stock) to the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of Capital Stock of Holdings or any of its Subsidiaries (or any direct or indirect parent thereof) now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of Capital Stock of Holdings or any of its Subsidiaries (or any direct or indirect parent thereof) now or hereafter outstanding; and (iv) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, Subordinated Indebtedness.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor to its rating agency business.
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“Sanctioned Country” means, at any time, a country, territory or region that is, or whose government is, the subject or target of any Sanctions, including, as of the Closing Date, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria.
“Sanctioned Person” means, at any time, any Person with whom dealings are restricted or prohibited under Sanctions, including (i) any Person listed in any Sanctions-related list of designated Persons maintained by the U.S. (including by OFAC, the U.S. Department of the Treasury, or the U.S. Department of State) or by the United Nations Security Council, the European Union or any EU member state, Her Majesty’s Treasury of the United Kingdom or any other relevant sanctions authority, (ii) any Person located, operating, organized or resident in a Sanctioned Country, or (iii) any Person owned or controlled, directly or indirectly, by any such Person described in clause (i) or (ii) of this definition.
“Sanctions” means sanctions or trade embargoes enacted, imposed, administered or enforced from time to time by (i) the U.S. government, including those administered by OFAC, the U.S. Department of State, or the U.S. Department of Commerce, (ii) the United Nations Security Council, the European Union or any of its member states or Her Majesty’s Treasury of the United Kingdom, or (iii) any other relevant sanctions authority.
“Secured Hedge Agreement” means, at any time of determination, any and all Hedge Agreements between any of the Credit Parties and either (x) GSSLG and any of its Affiliates and (y) any other Lender Counterparty so long as for purposes of this clause (y), the relevant Credit Parties or Lender Counterparties have provided Administrative Agent and Collateral Agent written notice and copies of such Hedge Agreements.
“Secured Parties” means each Agent, Lender and Lender Counterparty and shall include all former Agents, Lenders and Lender Counterparties to the extent that any Obligations owing to such Persons were incurred while such Persons were Agents, Lenders or Lender Counterparties and such Obligations have not been paid or satisfied in full.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, including any Capital Stock and any Hedge Agreements or other derivatives.
“Securities Account” means any “securities account” as defined in Article 8 of the UCC and any “commodity account” as defined in Article 9 of the UCC.
“Securities Account Control Agreement” means, with respect to a Securities Account, an agreement in form and substance reasonably satisfactory to Collateral Agent that (i) is entered into by and among Collateral Agent, the Securities Intermediary at which such Securities Account is maintained, and the Credit Party having rights in or to the underlying
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financial assets credited to or maintained in such Securities Account, and (ii) is effective for Collateral Agent to obtain “control” (within the meaning of Article 8 and 9 of the UCC, as applicable) of such Securities Account.
“Securities Act” means the Securities Act of 1933.
“Securities Intermediary” means any “securities intermediary” or “commodity intermediary” as such terms are defined in the UCC.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator's Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the NYFRB, currently at http://www.newyorkfed. org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Solvency Certificate” means a certificate of the Chief Financial Officer of Credit Party Representative substantially in the form of Exhibit E2.
“Solvent” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on such date of determination and reflected in the Projections or with respect to any transaction contemplated or to be undertaken after such date of determination; (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (d) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under FASB Accounting Standards Codification Topic 450-20).
“Specified Compliance Costs” means, with respect to any period on or prior to the first anniversary of the Closing Date, the reasonably documented and actually incurred fees, costs and expenses payable by Holdings or any of its Subsidiaries in connection with the environmental and FCPA compliance matters associated with regulatory permitting at the Tanok facility in Mexico during such period, net of any amounts in respect thereof from any indemnification rights actually received during such period.
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“Specified Extraordinary Receipts” means any Extraordinary Receipts actually received by one or more Credit Parties (i) consisting of a tax refund in an amount equal to $4,100,000 in respect of carry-back amounts related to the three Fiscal Year period ending with Fiscal Year 2021 for which amended returns were filed prior to the Closing Date and/or (ii) in respect of recovery of damages, expenses, or other consideration in connection with the matter described on page 13 of Holdings’ Form 10-Q for the period ending August 30, 2020 in the section entitled “Compliance Matters and Related Litigation” under the heading “Legal Contingencies,” including but not limited to (a) recovery, indemnification, or reimbursement of expenses or other consideration received from any insurance carrier, (b) recovery from the Indemnification Escrow created in the December 1, 2018 acquisition of Yucatan Foods (whether that recovery comes in the form of stock or cash), and (c) any proceeds from or related to the litigation entitled Haerizadeh v. Landec, et al, Superior Court for the State of California, County of Los Angeles, Case Number 20SMCV01202, including any proceeds from the Cross-Complaint filed by Holdings and Curation in that action or settlements with parties to that action; provided¸ however, any Specified Extraordinary Receipts received by any Credit Party may only be retained by such Credit Party so long as (x) no Event of Default has occurred and is continuing at the time such Specified Extraordinary Receipts are received by such Credit Party, and (y) the Credit Parties have actually paid from such Specified Extraordinary Receipts all amounts related to the matters described in clauses (a) through (c) of this definition generating such Specified Extraordinary Receipts, including without limitation, payment in full of all expenses, payments made in satisfaction in full of any third-party claims, and payment in full of (or the establishment of adequate segregated reserves in respect of) all reasonably foreseeable prospective mitigation costs, fines, penalties or similar obligations or amounts fines or fees related to such matter.
“Subject Transaction” as defined in the definition of the term “Consolidated Adjusted EBITDA”.
“Subordinated Indebtedness” means any Indebtedness or other obligation that is contractually subordinated in payment or Lien ranking to the Obligations or related Liens.
“Subordination Agreement” means, with respect to any Subordinated Indebtedness, the corresponding subordination or intercreditor agreement, if any, by and among Administrative Agent and/or Collateral Agent, on the one hand, and the creditor or creditors (or their respective agents) in respect of such Subordinated Indebtedness, on the other hand, which shall be in form and substance satisfactory to Administrative Agent.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity (i) the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election or appointment of the Person or Persons (whether Directors, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the
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time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
“Supported QFC” has the meaning assigned to it in Section 10.26.
“Swap Obligation” as defined in the definition of the term “Excluded Swap Obligation”.
“Tanok” means Procesdora Tanok, S. de R. L. de C. V., a Mexican limited liability company.
“Tanokatan” means Tanokatan, S. de R. L. de C. V., a Mexican limited liability company.
“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding (together with interest, penalties and other additions thereto) of any nature and whatever called, imposed, levied, collected, withheld or assessed by any Governmental Authority.
“Term Loan” means, as the context requires, an Initial Term Loan or a Multi-Draw Term Loan.
“Term Loan Commitment” means, as the context requires, the Initial Term Loan Commitment or the Multi-Draw Term Loan Commitment of a Lender, and “Term Loan Commitments” means such commitments of all Lenders in the aggregate.
“Term Loan Maturity Date” means the earlier of (i) December 31, 2025, and (ii) the date that all Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.
“Term Loan Priority Account” as defined in the Intercreditor Agreement.
“Term Loan Priority Collateral” as defined in the Intercreditor Agreement.
Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Terminated Lender” as defined in Section 2.22.
“Title Policy” as defined in the definition of the term “Mortgaged Real Estate Documents”.
“Transaction Costs” means the reasonable and documented out-of-pocket fees, costs and expenses payable by Holdings or any of its Subsidiaries to the extent paid or payable to
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non-Affiliates on or before the Closing Date in connection with the transactions contemplated by the Credit Documents and the ABL Credit Documents.
“Type of Loan” means with respect to any Loan, a Base Rate Loan or a LIBO Rate Loan.
“UCC” means the Uniform Commercial Code (or any similar or equivalent statute or law) as in effect in any applicable jurisdiction.
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
Unadjusted Benchmark Replacement means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfinanced Capital Expenditure Ratio” means as of the last day of (i) the first Fiscal Quarter ending after the Closing Date of (a) Consolidated Adjusted EBITDA for such Fiscal Quarter, to (b) Consolidated Unfinanced Capital Expenditures for such Fiscal Quarter, (ii) the second Fiscal Quarter ending after the Closing Date of (a) Consolidated Adjusted EBITDA for the two Fiscal Quarters period ending on such date, to (b) Consolidated Unfinanced Capital Expenditures for such two Fiscal Quarters, (iii) the third Fiscal Quarter period ending after the Closing Date of (a) Consolidated Adjusted EBITDA for the three Fiscal Quarter period ending on such date, to (b) Consolidated Unfinanced Capital Expenditures for such three Fiscal Quarter period, and (iv) any other Fiscal Quarter of (a) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ending on such date, to (b) Consolidated Unfinanced Capital Expenditures for such four-Fiscal Quarter period ending on such date.
“U.S.” means the United States of America.
“U.S. Lender” as defined in Section 2.19(c).
“U.S. Special Resolution Regime” has the meaning assigned to it in Section 10.26.
“U.S. Tax Compliance Certificate” means a tax compliance certificate substantially in the form of Exhibit C.
“Valid Expense Item” means any charge, compensation, cost, expense, reserve, accrual, fee or loss, as applicable, that is reasonably documented, factually supportable, actually incurred, set, established or accrued (in each case, as determined in accordance with GAAP) and,
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except for non-Cash items, paid or payable to Persons who are not Affiliates of Holdings and its Subsidiaries, unless otherwise expressly permitted hereunder.
“Voting Power Determinants” means, individually or collectively, as applicable, the Initial Term Loan Exposure and the Multi-Draw Term Loan Exposure.
“WARN Act” as defined in Section 4.19.
“Wholly-Owned” means, in reference to any Subsidiary of a specified Person, that 100% of the Capital Stock of such Subsidiary (other than (i) Directors’ qualifying shares and (ii) shares issued to foreign nationals to the extent required by applicable law) is owned, directly or indirectly, by such Person and/or one or more of such specified Person’s other Subsidiaries that also qualify as Wholly-Owned Subsidiaries under this definition.
“Windset” means Windset Holdings 2010 Ltd., a corporation governed by the laws of Canada.
“Windset Investment” means the Investment of Curation in the Capital Stock of Windset.
“Windset Pledge Event” means the date, if any, that Companies (a) shall have obtained the necessary consents in order to grant a First Priority Lien on and in the Windset Investment in favor of the Collateral Agent, for the benefit of the Secured Parties, and (b) shall have delivered, all such documents, instruments, agreements and certificates as are reasonably requested by Collateral Agent in order to grant and to perfect a First Priority Lien in favor of Collateral Agent, for the benefit of the Secured Parties, in 100% of the Windset Investment.
Withholding Agent” means Holdings and the Administrative Agent.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2.    Accounting Terms, Financials Statements, Calculations. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Credit Party Representative to the Lenders pursuant to Sections 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the
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time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(e), if applicable). Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements. Notwithstanding the foregoing, (i) for purposes of determining compliance with the financial covenants contained in this Agreement, any election by any Credit Party to measure an item of Indebtedness using fair value (as permitted by Accounting Standards Codification Section 825-10 or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made and (ii) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made without giving effect to any change in accounting treatment of “operating” and “capital” leases scheduled to become effective for fiscal years beginning after December 15, 2018 as set forth in the Accounting Standards Update No. 2016-02, Leases, (Topic 842), issued by the Financial Accounting Standards Board in February 2016, or any similar publication issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect prior to December 15, 2018.  For purposes of determining pro forma compliance with any financial covenant as of any date prior to the initial test date on which such financial covenant is to be tested hereunder, the level of any such financial covenant shall be deemed to be the covenant level for such initial test date. Notwithstanding anything to the contrary in this Agreement, for purposes of determining compliance with any basket, accordion or incremental feature, test, or condition under any provision of this Agreement or any other Credit Document, no Credit Party may retroactively divide, classify, re-classify or deem or otherwise treat a historical transaction as having occurred in reliance on a basket or exception that was not available at the time of such historical transaction or if and to the extent that such basket or exception was relied upon for any later transaction. When used herein, the term “financial statements” shall be construed to include all notes and schedules thereto. Whenever the term “Holdings” is used in respect of a financial covenant or a related definition, it shall be construed to mean “Holdings and its Subsidiaries on a consolidated basis” unless the context clearly requires otherwise. Except as otherwise provided therein, this Section 1.2 shall apply equally to each other Credit Document as if fully set forth therein, mutatis mutandis.
1.3.    Interpretation. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. Any requirement for a referenced agreement, instrument, certificate or other document to be in “substantially” the form of an Appendix, Schedule or Exhibit hereto means that such referenced document shall be in the form of such Appendix, Schedule or Exhibit with such modifications to such form as are approved by Administrative Agent and, in the case of any Collateral Document, Collateral Agent, in each case, in such Agent’s sole discretion. The words “hereof”, “hereunder”, “hereby” and words of similar import used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The use herein of the words “include” or “including”, when following any general statement, term or matter, shall
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not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The word “will” shall be construed as having the same meaning and effect as the word “shall”. The words “assets” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties of any relevant Person or Persons. The terms “lease” and “license” shall be construed to include sublease and sublicense. Whenever the context may require, any pronoun shall be construed to include the corresponding masculine, feminine and neuter forms. References to Persons include their respective permitted successors and assigns. Except as otherwise expressly provided herein, references to statutes, legislative acts, laws, regulations and rules shall be deemed to refer to such statutes, acts, laws, regulations and rules as in effect from time to time, including any amendments of the same and any successor statutes, acts, laws, regulations and rules, unless any such reference is expressly limited to refer to any statute, act, law, regulation or rule “as in effect on” a specified date. Except as otherwise expressly provided herein, any reference in or to this Agreement (including any Appendix, Schedule, or Exhibit hereto), any other Credit Document, or any other agreement, instrument or other document shall be construed to refer to the referenced agreement, instrument or document as assigned, amended, restated, supplemented or otherwise modified from time to time, in each case, in accordance with the express terms of this Agreement and any other relevant Credit Document unless such reference is expressly limited to refer to such agreement, instrument or other document “as in effect on” a specified date. Unless otherwise expressly stated, if a Person may not take an action under this Agreement, then it may not take that action indirectly, or take any action assisting or supporting any other Person in taking that action directly or indirectly. “Taking an action indirectly” means taking an action that is not expressly prohibited for the Person but is intended to have substantially the same effects as the prohibited action. Except as otherwise provided therein, this Section 1.3 shall apply equally to each other Credit Document as if fully set forth therein, mutatis mutandis.
SECTION 2.    LOANS
2.1.    Term Loans.
(a)    Term Loan Commitments. Subject to the terms and conditions hereof:
(i)    each Lender severally agrees to make, on the Closing Date, an Initial Term Loan to Companies in an amount equal to such Lender’s Initial Term Loan Commitment; and
(ii)    each Lender severally agrees to make, at any time after the Closing Date and prior to the Multi-Draw Commitment Termination Date, one or more Multi-Draw Term Loans to Companies in an amount not to exceed such Lender’s Multi-Draw Term Loan Commitment immediately prior to giving effect to any such Multi-Draw Term Loan; provided, after giving effect to the making of the Multi-Draw Term Loans, in
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no event shall Availability with respect to the Multi-Draw Term Loan Commitments be less than $0.
Companies may make only one borrowing under the Initial Term Loan Commitment, which borrowing may only occur on the Closing Date. Companies may make one or more borrowings of the Multi-Draw Term Loan Commitment, which borrowings may only occur during the Multi-Draw Commitment Period. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.11(a) and 2.13, all amounts owed hereunder with respect to the Initial Term Loans and the Multi-Draw Term Loans shall be Paid in Full no later than the Term Loan Maturity Date. Each Lender’s Initial Term Loan Commitment shall terminate immediately and fully without further action by any Person upon the funding of such Lender’s Initial Term Loan Commitment on the Closing Date. Each Lender’s Multi-Draw Term Loan Commitment shall (x) automatically and permanently be reduced by the amount of each Multi-Draw Term Loan made hereunder, and (y) terminate immediately and without further action by any Person on the Multi-Draw Commitment Termination Date.
(b)    Borrowing Mechanics for Term Loans.
(i)    Credit Party Representative shall deliver to Administrative Agent a duly executed Funding Notice no later than three Business Days prior to the Closing Date with respect to Initial Term Loans to be made on the Closing Date. Following the Closing Date, whenever Companies desire that the Lenders make Multi-Draw Term Loans, Credit Party Representative shall deliver to Administrative Agent a duly executed Funding Notice no later than 1:00 p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date in the case of a LIBO Rate Loan, and at least one Business Day in advance of the proposed Credit Date in the case of a Base Rate Loan. Except as otherwise provided herein, a Funding Notice for an Initial Term Loan or a Multi-Draw Term Loan, as applicable, that is a LIBO Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Companies shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing.
(ii)    Each Lender shall make its Initial Term Loan or Multi-Draw Term Loan, as the case may be, available to Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date, by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office. Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Term Loans available to Companies on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from the Lenders to be credited to the account of Credit Party Representative as designated in writing to Administrative Agent in the applicable Funding Notice by Credit Party Representative.
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2.2.    [Intentionally Reserved].
2.3.    [Intentionally Reserved].
2.4.    Pro Rata Shares; Availability of Funds.
(a)    Pro Rata Shares. All Loans shall be made, and all required participations shall be purchased, by the Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby, nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
(b)    Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Companies a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event that (i) Administrative Agent declines to make a requested amount available to Companies until such time as all applicable Lenders have made payment to Administrative Agent, (ii) a Lender fails to fund to Administrative Agent all or any portion of the Loans required to be funded by such Lender hereunder prior to the time specified in this Agreement, and (iii) such Lender’s failure results in Administrative Agent failing to make a corresponding amount available to Companies on the Credit Date, at Administrative Agent’s option, such Lender shall not receive interest hereunder with respect to the requested amount of such Lender’s Loans for the period commencing with the time specified in this Agreement for receipt of payment by Companies through and including the time of Companies’ receipt of the requested amount. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Credit Party Representative, and Companies shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.4(b) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that any Company may have against any Lender as a result of any default by such Lender hereunder.
2.5.    Use of Proceeds. The proceeds of the Initial Term Loans made on the Closing Date shall be applied by Companies (together with any ABL Loans made on the Closing Date) to
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repay in full all Existing Indebtedness, to pay Transaction Costs and for general working capital and general corporate purposes of Companies and their Subsidiaries. The proceeds of the Multi-Draw Term Loans made after the Closing Date shall be applied by Companies for Permitted Acquisitions and Consolidated Capital Expenditures of Holdings and its Subsidiaries. For the avoidance of any doubt, in no event may any proceeds of the Multi-Draw Term Loans be used for general corporate purposes or to pay any of the costs, fines, penalties or other related obligations in respect of the matters described in clauses (a) through (c) of the definition of “Specified Extraordinary Receipts” or for any other obligations relating to future Adverse Proceedings. Notwithstanding anything to the contrary in this Agreement, no Credit Extension or proceeds thereof may be used in any manner that conflicts with Section 4.18 or Section 4.26.
2.6.    Evidence of Debt; Register; Promissory Notes.
(a)    Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Companies to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Companies, absent manifest error; provided, the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or any Company’s Obligations in respect of any applicable Loans; provided, further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(b)    Register. Administrative Agent (or any agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The Register shall be available for inspection by Credit Party Representative or any Lender (with respect to (i) any entry relating to such Lender’s Loans, and (ii) the identity of the other Lenders (but not any information with respect to such other Lenders’ Loans)) at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in the Register the Commitments and the Loans in accordance with the provisions of Section 10.6 and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Companies and each Lender, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or any Company’s Obligations in respect of any Loan. Each Company hereby designates Administrative Agent to serve as such Company’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.6, and each Company hereby agrees that, to the extent Administrative Agent serves in such capacity, Administrative Agent and its officers, Directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees”.
(c)    Promissory Notes. If so requested by any Lender by written notice to Credit Party Representative (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, Companies shall execute and deliver to such Lender (or, if applicable and if so specified in such notice, to any Person who is an assignee of
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such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Credit Party Representative’s receipt of such notice) a promissory note or notes, in form and substance reasonably acceptable to Administrative Agent, to evidence such Lender’s Term Loans or Term Loan Commitments.
2.7.    Interest on Loans.
(a)    Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
(i)    if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
(ii)    if a LIBO Rate Loan, at the Adjusted LIBO Rate plus the Applicable Margin.
(b)    The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any LIBO Rate Loan, shall be selected by Credit Party Representative and notified to Administrative Agent and the Lenders pursuant to the applicable Notice, as the case may be.
(c)    In connection with LIBO Rate Loans there shall be no more than five Interest Periods outstanding at any time. In the event Credit Party Representative fails to specify between a Base Rate Loan or a LIBO Rate Loan in the applicable Notice, such Loan (if outstanding as a LIBO Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the event Credit Party Representative fails to specify an Interest Period for any LIBO Rate Loan in the applicable Notice, Credit Party Representative shall be deemed to have selected an Interest Period of one month. As soon as practicable after 1:00 p.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the LIBO Rate Loans for which an interest rate is then being determined for the applicable Interest Period and will promptly give notice thereof to Credit Party Representative and each Lender.
(d)    Interest payable pursuant to Section 2.7(a) for Base Rate Loans (including Base Rate Loans determined by reference to the Adjusted LIBO Rate) shall be computed on the basis of a 365 or 366-day year, as the case may be, for the actual number of days elapsed in the period during which it accrues. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBO Rate Loan, the date of conversion of such LIBO Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan
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or, with respect to a Base Rate Loan being converted to a LIBO Rate Loan, the date of conversion of such Base Rate Loan to such LIBO Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
(e)    Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to each such Interest Payment Date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans.
2.8.    Conversion/Continuation.
(a)    Subject to Section 2.17 and so long as no Default or Event of Default shall have occurred and then be continuing, Companies shall have the option:
(i)    to convert at any time all or any part of any Term Loan equal to $500,000 and integral multiples of $250,000 in excess of that amount from one Type of Loan to another Type of Loan; provided, a LIBO Rate Loan may only be converted on the expiration of the Interest Period applicable to such LIBO Rate Loan unless Companies shall pay all amounts due under Section 2.17(d) in connection with any such conversion; or
(ii)    upon the expiration of any Interest Period applicable to any LIBO Rate Loan, to continue all or any portion of such Loan equal to $500,000 and integral multiples of $250,000 in excess of that amount as a LIBO Rate Loan.
(b)    Subject to Section 3.2(b), Credit Party Representative shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 1:00 p.m. (New York City time) at least one Business Day in advance of the proposed conversion date in the case of a conversion to a Base Rate Loan and at least three Business Days in advance of the proposed conversion or continuation date in the case of a conversion to, or a continuation of, a LIBO Rate Loan. Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBO Rate Loans shall be irrevocable on and after the related Interest Rate Determination Date, and Companies shall be bound to effect a conversion or continuation in accordance therewith. If on any day a Loan is outstanding with respect to which a Funding Notice or a Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then, for that day, such Loan shall be a Base Rate Loan.
2.9.    Default Interest. Upon (i) the occurrence and during the continuance of an Event of Default arising under Section 8.1(f) or 8.1(g) or (ii) the written election of Administrative Agent or the Requisite Lenders upon the occurrence and during the continuance of any other Event of Default, in each case, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts
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owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under any Debtor Relief Laws) from the date of occurrence of such Event of Default payable on demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided, any LIBO Rate Loans (a) may be converted to Base Rate Loans at the revocable election of Administrative Agent at any time after the occurrence of such Event of Default (irrespective of whether the Interest Period in effect at the time of such conversion has expired), and (b) unless the Requisite Lenders otherwise consent in writing that LIBO Rate Loans are available, will automatically be converted to Base Rate Loans upon the expiration of the Interest Period in effect at the time any such increase in the interest rate is effective, and in each case thereupon shall become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of (i) the increased rates of interest provided for in this Section 2.9 or (ii) any amount of interest that is less than the amount due, in each case, is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Agent or any Lender.
2.10.    Fees.
(a)    [Intentionally Reserved].
(b)    Companies jointly and severally agree to pay to the Lenders having Multi-Draw Term Loan Commitments a commitment fee equal to (i) any unused portion of the Multi-Draw Term Loan Commitments multiplied by (ii) 0.50% per annum. The fee referred to in this Section 2.10(b) shall be paid to Administrative Agent as set forth in Section 2.15(a) and, upon receipt, Administrative Agent shall promptly distribute to each such Lender its Pro Rata Share thereof.
(c)    All fees referred to in Section 2.10(b) shall be calculated on the basis of a 360-day year and the actual number of days elapsed and shall be payable monthly in arrears on the last day of each month during the Multi-Draw Commitment Period, as applicable, commencing on the first such date to occur after the Closing Date, and on the Multi-Draw Commitment Termination Date.
(d)    In addition to any of the foregoing fees, Companies jointly and severally agree to pay to the Agents and the Lenders, as applicable, such other fees in the amounts and at the times separately agreed upon, including the fees set forth in the Fee Letter.
2.11.    Scheduled Payments/Commitment Reductions.
(a)    Scheduled Installments. The principal amounts of the Term Loans shall be repaid in consecutive quarterly installments and at final maturity (each such payment, an “Installment”)
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(i)    the Initial Term Loans shall be repaid on the last day of each Fiscal Quarter (commencing March 30, 2023) in Installments equal to $1,875,000; and
(ii) the Multi-Draw Term Loans shall be repaid on the last day of each Fiscal Quarter (commencing March 30, 2023) in Installments equal to 1.25% of the principal amount of the Multi-Draw Term Loans advanced as of such date.
Notwithstanding the foregoing, the Initial Term Loans and the Multi-Draw Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be Paid in Full no later than the Term Loan Maturity Date.
(b)    [Intentionally Reserved].
(c)    [Intentionally Reserved].
2.12.    Voluntary Prepayments/Commitment Reductions.
(a)    Voluntary Prepayments.
(i)    Any time and from time to time:
(A)    with respect to Base Rate Loans, Companies may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $500,000 and integral multiples of $250,000 in excess of that amount; and
(B)    with respect to LIBO Rate Loans, Companies may prepay any such Loans on any Business Day in whole or in part (together with any amounts due pursuant to Section 2.17(d)) in an aggregate minimum amount of $500,000 and integral multiples of $250,000 in excess of that amount.
(ii)    All such prepayments shall be made:
(A)    upon not less than one Business Day’s prior written or telephonic notice in the case of Base Rate Loans; and
(B)    upon not less than three Business Days’ prior written or telephonic notice in the case of LIBO Rate Loans,
in each case, given to Administrative Agent by 1:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (and Administrative Agent will promptly transmit such written notice for Term Loans to each Lender). Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be (I) applied in accordance with Section 2.14(b), and (II) accompanied by any amounts due under Section 2.17(d) and the Fee Letter in connection therewith.
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(b)    Voluntary Commitment Reductions.
(i)    Companies may, upon not less than three Business Days’ prior written or telephonic notice confirmed in writing to Administrative Agent (which original written notice Administrative Agent will promptly transmit to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part any unused portion of the Multi-Draw Term Loan Commitments; provided, any such partial reduction of the Multi-Draw Term Loan Commitments shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.
(ii)    Companies’ notice to Administrative Agent shall be irrevocable (unless otherwise agreed to by Administrative Agent in its sole discretion) and shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Multi-Draw Term Loan Commitments shall be effective on the date specified in Companies notice and shall reduce the Multi-Draw Term Loan Commitment of each Lender proportionately to its Pro Rata Share thereof. Any such voluntary termination or reduction shall be accompanied by any amounts due under the Fee Letter in connection therewith.
2.13.    Mandatory Prepayments/Commitment Reductions.
(a)    Asset Sales. No later than the third Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (it being understood that such Net Asset Sale Proceeds shall be promptly deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account (and in any event no later than the next Business Day) following receipt thereof), Companies shall prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) (A) in the case of Net Asset Sale Proceeds resulting from Asset Sales (other than in respect of Asset Sales of the Windset Investment (which shall solely be the subject of clause (B) below or the second to last sentence of this Section 2.13(a)) or any Permitted Curation Sale (which shall solely be the subject of clause (C) below or the second to last sentence of this Section 2.13(a))), to the extent that, after giving effect to receipt of such Net Asset Proceeds, the aggregate Net Asset Sale Proceeds from all such Asset Sales during the period commencing on the Closing Date and ending on such date of determination do not exceed $5,000,000, (B) in the case of Net Asset Sale Proceeds resulting from Asset Sales of the Windset Investment, an amount of such Net Asset Sale Proceeds, if any, that is not subject to repayment in accordance with the second to last sentence of this Section 2.13(a) or (C) in the case of Net Asset Sale Proceeds resulting from Asset Sales constituting a Permitted Curation Sale, an amount of such Net Asset Sale Proceeds, if any, that is not subject to repayment in accordance with the second to last sentence of this Section 2.13(a) (such amounts, “Asset Sale Reinvestment Amounts”), upon delivery of a written notice to Administrative Agent, Companies shall have the option to invest such Asset Sale Reinvestment Amounts within three hundred sixty-five (365) days of receipt thereof (as extended, if at all, in accordance with the proviso below, the “Asset Sale Reinvestment Period”) in long-term productive assets that constitute Term Loan Priority
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Collateral of the general type used in the business of (I) Companies, in respect of Asset Sale Reinvestment Amounts generated in accordance with clause (ii)(A) above (so long as any such individual or aggregate investment in the amount of $5,000,000 or more has been consented to by Administrative Agent and the Requisite Lenders) and (II) Lifecore or any of its Subsidiaries, in respect of any Asset Sale Reinvestment Amounts generated in accordance with clauses (ii)(B) or (ii)(C) above (such assets, “Additional Assets”); provided further, that the Asset Sale Reinvestment Period shall be extended for up to an additional one hundred eighty (180) days in respect of any Asset Sale Reinvestment Amounts where the Credit Parties have, on or before the expiration of the initial Asset Sale Reinvestment Period, entered into a definitive agreement for the purchase or other acquisition of Additional Assets. In the event that the Asset Sale Reinvestment Amounts are not reinvested in accordance with the provisions above prior to the earliest of (i) the last day of such Asset Sale Reinvestment Period and (ii) the date of the occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale Reinvestment Amounts to the Obligations as set forth in Section 2.14(b). Prior to entering into any Asset Sale of assets which constitute Term Loan Priority Collateral, the Credit Party Representative shall provide not less than three (3) Business Days’ prior written notice thereof and the Net Asset Sale Proceeds of such Assets shall be deposited into a deposit account subject to a Control Agreement whereby Administrative Agent has a First Priority security interest therein. If Administrative Agent does not receive prior written notice that Term Loan Priority Collateral is the subject of an Asset Sale, then the Credit Parties shall be deemed to have represented and warranted to Administrative Agent on the date such Asset Sale is consummated that none of the assets subject to such Asset Sale constitute Term Loan Priority Collateral. In addition to the foregoing, (i) 100% of the Net Asset Sale Proceeds resulting from an Asset Sale, in whole or in part, of the Windset Investment shall be used to prepay the Loans (a “Windset Sale”) and (ii) 100% of the Net Asset Sale Proceeds resulting from a Permitted Curation Sale shall be used to prepay the Loans; provided that, so long as no Default or Event of Default shall have occurred and be continuing, (x) in the case of the foregoing clause (i), if after giving effect to any such prepayment of the Loans from 100% of such Net Asset Sale Proceeds, if made, the Asset Sale Leverage Ratio would be less than 4.37 to 1.00, Companies shall only be required to prepay the Loans in an amount of such Net Asset Sale Proceeds such that, after giving effect to such prepayment of the Loans from such Net Asset Sale Proceeds, the Asset Sale Leverage Ratio would be equal to 4.37 to 1.00 (with the remainder of such Net Asset Sale Proceeds constituting Asset Sale Reinvestment Amounts subject to reinvestment in accordance with the provisions of this clause (x); provided that, to the extent at any time, or from time to time, during the applicable Asset Sale Reinvestment Period applicable to such Windset Sale, the Asset Sale Leverage Ratio would be greater than 4.37 to 1.00, any amount necessary to cause the Asset Sale Leverage Ratio to not be greater than 4.37 to 1.00 shall cease to constitute Asset Sale Reinvestment Amounts and Companies shall, not later than the third Business Day following such occurrence, prepay the Loans in such amount as set forth in Section 2.14(b)) and (y) in the case of the foregoing clause (ii), if after giving effect to any such prepayment of the Loans from 100% of such Net Asset Sale Proceeds, if made, the Asset Sale Leverage Ratio would be less than 4.00 to 1.00, Companies shall only be required to prepay the Loans in an amount of such Net Asset Sale Proceeds such that, after giving effect to such prepayment of the Loans from such Net Asset Sale Proceeds, the Asset Sale Leverage Ratio would be equal to 4.00 to 1.00 (with the remainder of such Net Asset Sale Proceeds constituting Asset Sale Reinvestment Amounts
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subject to reinvestment in accordance with the provisions of this clause (y); provided that, to the extent at any time, or from time to time, during the applicable Asset Sale Reinvestment Period applicable to such Permitted Curation Sale, the Asset Sale Leverage Ratio would be greater than 4.00 to 1.00, any amount necessary to cause the Asset Sale Leverage Ratio to not be greater than 4.00 to 1.00 shall cease to constitute Asset Sale Reinvestment Amounts and Companies shall, not later than the third Business Day following such occurrence, prepay the Loans in such amount as set forth in Section 2.14(b).
(b)    Insurance/Condemnation Proceeds. No later than the third Business Day following the date of receipt by any Credit Party, or Administrative Agent as lender’s loss payee, of any Net Insurance/Condemnation Proceeds (it being understood that such Net Insurance/Condemnation Proceeds received by any Credit Party shall be promptly deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account (and in any event no later than the next Business Day) following receipt thereof), Companies shall prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the extent that the aggregate Net Insurance/Condemnation Proceeds in any Fiscal Year do not exceed $500,000 (such amounts, “Insurance/Condemnation Reinvestment Amounts”), upon delivery of a written notice to Administrative Agent, Companies shall have the option to invest such Net Insurance/Condemnation Proceeds within three hundred sixty-five (365) days of receipt thereof (as extended, if at all, in accordance with the proviso below, the “Insurance/Condemnation Reinvestment Period”) in long-term productive assets that constitute Term Loan Priority Collateral of the general type used in the business of the Credit Parties, which investment may include the repair, restoration or replacement of the relevant assets in respect of which such Net Insurance/Condemnation Proceeds were received (such assets, “Replaced Assets”); provided further, that the Insurance/Condemnation Reinvestment Period shall be extended for up to an additional one hundred eighty (180) days in respect of any Net Insurance/Condemnation Proceeds where the Credit Parties have, on or before the expiration of the initial Insurance/Condemnation Reinvestment Period, entered into a definitive agreement for the replacement of Replaced Assets. In the event that the Insurance/Condemnation Reinvestment Amounts are not reinvested by Companies prior to the earlier of (x) the expiration of the applicable Insurance/Condemnation Reinvestment Period, and (y) the date of the occurrence of an Event of Default, Administrative Agent shall apply such Insurance/Condemnation Reinvestment Amounts to the Obligations as set forth in Section 2.14(b). Upon receipt of any Net Insurance/Condemnation Proceeds generated from assets which constitute Term Loan Priority Collateral, the Credit Party Representative shall provide not less than three (3) Business Days’ prior written notice thereof and the Net Insurance/Condemnation Proceeds shall be deposited in a deposit account subject to a Control Agreement whereby Administrative Agent has a First Priority security interest therein.
(c)    Issuance of Equity Securities. No later than the third Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Net Equity Proceeds from any Person other than a Credit Party (it being understood that any such Net Equity Proceeds shall be deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account on the same Business Day as receipt thereof), excluding any such
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Net Equity Proceeds resulting from Permitted Capital Stock Issuances and any such Net Equity Proceeds used for purposes approved in writing by Administrative Agent in its sole discretion, Companies shall prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to 100% of such Net Equity Proceeds.
(d)    Issuance of Debt. No later than the third Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Net Debt Proceeds (it being understood that any such Net Debt Proceeds shall be promptly deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account (and in any event no later than the next Business Day) following receipt thereof), Companies shall prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to 100% of such Net Debt Proceeds; provided, notwithstanding the foregoing, the payment required under this Section 2.13(d) shall not be construed as (or otherwise deemed to be) a consent by any Agent or any Lender to the incurrence of such Indebtedness not otherwise permitted by this Agreement.
(e)    Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending on or about May 30, 2022), no later than the date required for delivery of annual financial statements with respect to such Fiscal Year pursuant to Section 5.1(c), Companies shall prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to (x) (i) 50.0% of such Consolidated Excess Cash Flow for such Fiscal Year at any time the Leverage Ratio is greater than or equal to 4.00:1.00 for such Fiscal Year, and (ii) 25.0% of such Consolidated Excess Cash Flow for such Fiscal Year at any time the Leverage Ratio is less than 4.00:1.00 for such Fiscal Year, in each case, as evidenced by the Compliance Certificate delivered under Section 5.1(d) with respect to such Fiscal Year, minus (y) the aggregate amount of all voluntary prepayments of the Term Loans made during such Fiscal Year and any payments of the ABL Indebtedness, solely to the extent accompanied by a corresponding permanent commitment reduction. Any amounts prepaid pursuant to this Section 2.13(e) with respect to any Fiscal Year in excess of the amounts required pursuant to the immediately preceding sentence shall be treated as voluntary prepayments made pursuant to Section 2.12(a).
(f)    Extraordinary Receipts. No later than the third Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Extraordinary Receipts (it being understood that such Extraordinary Receipts shall be promptly deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account (and in any event no later than the next Business Day) following receipt thereof) in excess of $500,000 in the aggregate in any trailing 12 month period, Companies shall prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to such Extraordinary Receipts.
(g)    Prepayment Certificate. Concurrently with any prepayment of the Loans and reduction of the Commitments pursuant to Sections 2.13(a) through 2.13(f), Credit Party Representative shall deliver to Administrative Agent a certificate of its Chief Financial Officer demonstrating the calculation of the applicable net proceeds, Consolidated Excess Cash Flow or other amount owing to the Lenders under any of the Credit Documents, if any, as the case may be, and certifying the amount of such proceeds mandatorily prepaid under the ABL Credit
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Agreement and the Intercreditor Agreement as the result of such amounts. In the event that Companies shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Companies shall promptly make an additional prepayment of the Loans and the Commitments shall be permanently reduced in an amount equal to such excess, and Credit Party Representative shall concurrently therewith deliver to Administrative Agent a certificate of its Chief Financial Officer demonstrating the derivation of such excess.
(h)    Intercreditor Agreement. Each of the prepayments of the Loans pursuant to Sections 2.13(a) through 2.13(f), and the application of such prepayments pursuant to Section 2.14, shall be subject to the terms of the Intercreditor Agreement.
(i)    Mandatory Termination of Multi-Draw Term Loan Commitment. To the extent the Loans shall have been prepaid in full pursuant to and in accordance with Section 2.14(b) below, any then unused Multi-Draw Term Loan Commitments shall automatically terminate in full, and be reduced to zero, without any further action required by any Person.
2.14.    Application of Prepayments.
(a)    [Intentionally Reserved].
(b)    Application of Prepayments by Type of Loans. Any voluntary prepayments of Term Loans pursuant to Section 2.12 and any mandatory prepayment of any Loan pursuant to Section 2.13 shall be applied as follows:
first, to the payment of all fees (other than any premium, including under the Fee Letter) and all expenses specified in Section 10.2, in each case, to the full extent thereof;
second, to the payment of any accrued interest at the Default Rate, if any;
third, to the payment of any accrued interest (other than Default Rate interest);
fourth, to the payment of the applicable premium (including under the Fee Letter), if any, on any Loan or Commitment;
fifth, to prepay Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof), which shall be applied to reduce the remaining scheduled Installments of principal of the Term Loans on a pro rata basis; and
sixth, to payment of any remaining Obligations then due and payable.
(c)    [Intentionally Reserved].
(d)    Application of Prepayments of Loans to Base Rate Loans and LIBO Rate Loans. Considering each Class of Loans being prepaid separately, any prepayment thereof shall
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be applied first to Base Rate Loans to the full extent thereof before application to LIBO Rate Loans, in each case, in a manner that minimizes the amount of any payments required to be made by Companies pursuant to Section 2.17(d).
2.15.    General Provisions Regarding Payments.
(a)    All payments by Companies of principal, interest, fees and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 3:00 p.m. (New York City time) on the date due by wire transfer to an account designated by Administrative Agent from time to time that is maintained by Administrative Agent or its Affiliates for the account of the Lenders or Administrative Agent. For purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Companies on the next Business Day.
(b)    All payments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payment received in respect of any Loan on a date when interest or premium is due and payable with respect to such Loan) shall be applied to the payment of interest and premium then due and payable before application to principal.
(c)    Administrative Agent (or any agent or sub-agent appointed by it) shall promptly distribute to each Lender, at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent.
(d)    Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBO Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(e)    Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder.
(f)    Each Company hereby authorizes Administrative Agent to charge such Company’s accounts with Administrative Agent or any of its Affiliates in order to cause timely payment to be made to Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in its accounts for that purpose).
(g)    Administrative Agent shall deem any payment by or on behalf of Companies hereunder that is not made in same day funds prior to 3:00 p.m. (New York City time) to be a non-conforming payment. Any such payment shall not be deemed to have been
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received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to Companies and each applicable Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or an Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next Business Day) at the Default Rate from the date such amount was due and payable until the date such amount is Paid in Full.
(h)    If an Event of Default shall have occurred and not otherwise been waived, and the Obligations have become due and payable in full hereunder, whether by acceleration, maturity or otherwise, all payments or proceeds received by any Agent hereunder or under any Collateral Document in respect of any of the Obligations, including all proceeds received by any Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral, shall be applied in full or in part as follows:
first, to the payment of all costs and expenses of such sale, collection or other realization, including reasonable compensation to each Agent and its agents and counsel, and all other expenses, liabilities and advances made or incurred by any Agent in connection therewith, and all amounts for which any Agent is entitled to indemnification hereunder or under any Collateral Document (in its capacity as an Agent and not as a Lender) and all advances made by any Agent under any Collateral Document for the account of the applicable Credit Party thereunder, and to the payment of all costs and expenses paid or incurred by any Agent in connection with the exercise of any right or remedy hereunder or under any Collateral Document, all in accordance with the terms hereof or thereof;
second, to the extent of any excess of such proceeds, to the payment of all other Obligations for the ratable benefit of the Lenders and the Lender Counterparties; and
third, to the extent of any excess of such proceeds, to the payment to or upon the order of such Credit Party or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
2.16.    Ratable Sharing. The Lenders hereby agree among themselves that, except as otherwise provided in the Fee Letter, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of the Loans made and applied in accordance with the terms of Section 2.14), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) that is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other
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Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of any Credit Party or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Each Credit Party expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, consolidation, set-off or counterclaim with respect to any and all monies owing by such Credit Party to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.16 shall not be construed to apply to (a) any payment made by any Credit Party pursuant to and in accordance with the express terms of any Credit Document (including (x) the application of funds arising from the existence of a Defaulting Lender and (y) amounts received by a Lender pursuant to Sections 2.18 or 2.19) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
2.17.    Making or Maintaining LIBO Rate Loans.
(a)    Changed Circumstances/Temporary LIBOR Unavailability. In the event that Administrative Agent determines (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBO Rate Loans, that (i) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such LIBO Rate Loans, (ii) by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such LIBO Rate Loans on the basis provided for in the definition of the term “Adjusted LIBO Rate”, or (iii) the Adjusted LIBO Rate does not adequately and fairly reflect the cost to the Lenders of making or maintaining such LIBO Rate Loans during such Interest Period, Administrative Agent will reasonably promptly give notice to Credit Party Representative and each Lender of such determination, whereupon (A) no Loans may be made or continued as, or converted to, LIBO Rate Loans until such time as Administrative Agent notifies Credit Party Representative and the Lenders that the circumstances giving rise to such notice no longer exist, and (B) any Notice given by Credit Party Representative with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Credit Party Representative.
(b)    Benchmark Replacement Setting.
(i)    Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have
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occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Requisite Lenders.
(ii)    Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.
(iii)    Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Credit Party Representative and the Lenders of (1) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes, (4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (5) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.17(b).
(iv)    Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (1) if the then-current Benchmark is a term rate (including Term SOFR or the Adjusted LIBO Rate) and either
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(A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (2) if a tenor that was removed pursuant to clause (1) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v)    Benchmark Unavailability Period. Upon the Credit Party Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Credit Party Representative may revoke any request for a LIBO Rate Loan of, conversion to or continuation of LIBO Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Credit Party Representative will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
(c)    Illegality or Impracticability of LIBO Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Administrative Agent) that the making, maintaining or continuation of, or converting to, its LIBO Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the Closing Date that materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and such Affected Lender shall on that day give written or telephonic (promptly confirmed in writing) notice to Credit Party Representative and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter, (A) the obligation of the Affected Lender to make or continue Loans as, or to convert Loans to, LIBO Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (B) to the extent such determination by the Affected Lender relates to a LIBO Rate Loan then being requested by Credit Party Representative pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (C) the Affected Lender’s obligation to maintain its outstanding LIBO Rate
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Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (D) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a LIBO Rate Loan then being requested by Credit Party Representative pursuant to a Funding Notice or a Conversion/Continuation Notice, Credit Party Representative shall have the option, subject to the provisions of Section 2.17(d), to rescind such Notice as to all Lenders by giving written or telephonic (promptly confirmed in writing) notice to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender).
(d)    Compensation for Breakage or Non-Commencement of Interest Periods. Companies shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or calculated to be due and payable by such Lender to lenders of funds borrowed by it to make or carry its LIBO Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain (i) if for any reason (other than a default by such Lender) a borrowing of any LIBO Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any LIBO Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its LIBO Rate Loans occurs on any day other than the last day of an Interest Period applicable to that Loan (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise); or (iii) if any prepayment of any of its LIBO Rate Loans is not made on any date specified in a notice of prepayment given by Credit Party Representative.
(e)    Booking of LIBO Rate Loans. Any Lender may make, carry or transfer LIBO Rate Loans at, to or for the account of any of its branch offices or the office of an Affiliate of such Lender.
(f)    Assumptions Concerning Funding of LIBO Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.17 and under Section 2.18 shall be made as though such Lender had actually funded each of its relevant LIBO Rate Loans through the purchase of a LIBOR deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of the term “Adjusted LIBO Rate” in an amount equal to the amount of such LIBO Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of such Lender in the U.S.; provided, each Lender may fund each of its LIBO Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.17 and under Section 2.18.
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2.18.    Increased Costs; Capital Adequacy.
(a)    Compensation For Increased Costs and Taxes. Subject to the provisions of Section 2.19 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any Change in Law (i) subjects such Lender (or its applicable lending office), Administrative Agent or any company controlling such Lender or Administrative Agent to any additional Tax (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder, any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder, or its deposits, reserves, other liabilities or capital attributable thereto; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, liquidity, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to LIBO Rate Loans that are reflected in the definition of the term “Adjusted LIBO Rate”) or any company controlling such Lender; or (iii) imposes any other condition (other than with respect to Taxes) on or affecting such Lender (or its applicable lending office) or any company controlling such Lender or such Lender’s obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) or Administrative Agent with respect thereto; then, in any such case, Companies shall promptly pay to such Lender or Administrative Agent, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Person in its sole discretion shall determine) as may be necessary to compensate such Person for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender or Administrative Agent shall deliver to Credit Party Representative (in the case of a Lender, with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Person under this Section 2.18(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(b)    Capital Adequacy and Liquidity Adjustment. In the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that (i) any Change in Law regarding capital adequacy or liquidity, or (ii) compliance by any Lender (or its applicable lending office) or any company controlling such Lender with any Change in Law regarding capital adequacy or liquidity, in each case, has or would have the effect of reducing the rate of return on the capital of such Lender or any company controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Commitments or participations therein or other obligations hereunder with respect to the Loans, to a level below that which such Lender or such controlling company could have achieved but for such Change in Law (taking into consideration the policies of such Lender or
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such controlling company with regard to capital adequacy and liquidity), then from time to time, within five Business Days after receipt by Credit Party Representative from such Lender of the statement referred to in the next sentence, Companies shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling company for such reduction. Such Lender shall deliver to Credit Party Representative (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.18(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(c)    Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.18 shall not constitute a waiver of such Lender’s right to demand such compensation; provided, Companies shall not be required to compensate a Lender pursuant to this Section 2.18 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies Credit Party Representative of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
2.19.    Taxes; Withholding.
(a)    Payments to Be Free and Clear. All sums payable by or on behalf of any Credit Party hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax.
(b)    Withholding of Taxes. If the applicable Withholding Agent is (in such Withholding Agent’s reasonable good faith discretion) required by law to make any deduction or withholding on account of any Tax from any sum paid or payable by any Credit Party to Administrative Agent or any Lender under any of the Credit Documents: (i) the applicable Withholding Agent shall be entitled to pay or cause to be paid any such Tax in accordance with applicable law; and (iii) if such Tax is an Indemnified Tax, the sum payable by such Credit Party in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment (including for any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.19), the Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment for Indemnified Taxes been required or made.
(c)    Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a “United States person” (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-U.S. Lender”) shall, to the extent such Lender is legally entitled to do so, deliver to Company and Administrative Agent, on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be
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necessary in the determination of Company or Administrative Agent (each in the reasonable exercise of its discretion), (i) two copies of Internal Revenue Service Form W-8BEN, W-8BEN-E, W-8ECI, W-8EXP and/or W-8IMY (or, in each case, any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code, Treasury Regulations, or other applicable law or reasonably requested by Company to establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of U.S. federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, (ii) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code, a U.S. Tax Compliance Certificate together with two copies of Internal Revenue Service Form W-8BEN, W-8BEN-E or W-8IMY (or, in each case, any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of U.S. federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents or (iii) subject to, and only upon a Lender’s good faith determination that delivery will not expose such Lender to any adverse legal, commercial or tax consquences, executed copies of any other form prescribed by law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by law to permit Borrower or the Administrative Agent to determine the withholding or deduction required to be made. Each Lender that is a “United States person” (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “U.S. Lender”) shall deliver to Administrative Agent and Company on or prior to the Closing Date (or, if later, on or prior to the date on which such Lender becomes a party to this Agreement) two copies of Internal Revenue Service Form W-9 (or any successor form), properly completed and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from U.S. backup withholding tax, or otherwise prove that it is entitled to such an exemption. Each Lender required to deliver any forms, certificates or other evidence with respect to U.S. federal income tax withholding matters pursuant to this Section 2.19(c) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Administrative Agent for transmission to Company two new copies of Internal Revenue Service Form W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, W-8IMY, and/or W-9 (or, in any case, any successor form), or a U.S. Tax Compliance Certificate and two copies of Internal Revenue Service Form W-8BEN, W-8BEN-E, or W-8IMY (or, in each case, any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to confirm or establish that such Lender is not subject to deduction or withholding of U.S. federal income tax with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and Company of its inability to deliver any such forms, certificates or other evidence.
(d)    FATCA. If a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail
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to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to Credit Party Representative and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Credit Party Representative or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Credit Party Representative or Administrative Agent as may be necessary for the Credit Parties and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence of this clause (d), “FATCA” shall include any amendments made to FATCA after the date hereof.
(e)    Payment of Other Taxes by Credit Parties. Without limiting the provisions of Section 2.19(b), the Credit Parties shall timely pay to the relevant Governmental Authorities in accordance with applicable law or, at the option of Administrative Agent timely reimburse it for the payment of, all Other Taxes.
(f)    Indemnification by Credit Parties. Credit Parties shall jointly and severally indemnify Administrative Agent and any Lender for the full amount of any Indemnified Taxes (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.19) paid or payable by Administrative Agent or Lender or any of their respective Affiliates and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Credit Party shall be conclusive absent manifest error. Such payment shall be due within ten days of such Credit Party’s receipt of such certificate.
(g)    Indemnification by Lenders. Each Lender shall severally indemnify Administrative Agent for (i) Indemnified Taxes attributable to such Lender (but only to the extent that Company has not already indemnified Administrative Agent therefor and without limiting the obligation of Company to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(h)(i) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Credit Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Such payment shall be due within ten days of such Lender’s receipt of such certificate. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by Administrative Agent to such Lender from any other source against any amount due to Administrative Agent under this paragraph (g).
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(h)    Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.19, such Credit Party shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(i)    Administrative Agent. The Administrative Agent (and any assignee or successor) will deliver, to the Credit Party Representative, on or prior to the execution and delivery of this Agreement (or, assignment or succession, if applicable), either (i) (A) two (2) executed copies of IRS Form W-8ECI with respect to any amounts payable to the Administrative Agent for its own account and (B) two (2) duly completed copies of IRS Form W-8IMY (together with any required supporting information evidencing that Administrative Agent can receive such payments for the account of others free of U.S. withholding Taxes) for the amounts the Administrative Agent receives for the account of others, or (ii) two (2) executed copies of IRS Form W-9, whichever is applicable, and in each case of (i) and (ii), with the effect that Companies can make payments to the Administrative Agent without deduction or withholding of any taxes imposed by the United States.
(j)    Survival. Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.
2.20.    Obligation to Mitigate. Each Lender agrees that, if such Lender requests payment under Sections 2.17, 2.18 or 2.19, then such Lender will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender if, as a result thereof, the additional amounts payable to such Lender pursuant to Sections 2.17, 2.18 or 2.19, as the case may be, in the future would be eliminated or reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Commitments or Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Commitments or Loans or the interests of such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this Section 2.20 unless the Credit Parties agree to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by the Credit Parties pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Credit Party Representative (with a copy to Administrative Agent) shall be conclusive absent manifest error.
2.21.    Defaulting Lenders.
(a)    Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
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(i)    Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 10.4 shall be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, as Credit Party Representative may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; third, if so determined by Administrative Agent and Credit Party Representative, to be held in a Deposit Account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement, and fourth, so long as no Default or Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Credit Parties as a result of any judgment of a court of competent jurisdiction obtained by the Credit Parties against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the applicable Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.21(a)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(ii)    Certain Fees.
(A)    No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.10(b) for any period during which that Lender is a Defaulting Lender (and the Credit Parties shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B)    With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Credit Parties shall not be required to pay the remaining amount of any such fee.
(b)    Defaulting Lender Cure. If Credit Party Representative and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and
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subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the applicable Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Credit Party while that Lender was a Defaulting Lender; provided, further, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
(c)    Lender Counterparties. So long as any Lender is a Defaulting Lender, such Lender shall not be a Lender Counterparty with respect to any Secured Hedge Agreement entered into while such Lender was a Defaulting Lender.
2.22.    Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that (a) (i) any Lender (each, an “Increased-Cost Lender”) shall give notice to Credit Party Representative that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Sections 2.17, 2.18 or 2.19, (ii) the circumstances that have caused such Lender to be an Affected Lender or that entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after Credit Party Representative’s request for such withdrawal; or (b) (i) any Lender shall become and continue to be a Defaulting Lender, and (ii) such Defaulting Lender shall fail to cure the default pursuant to Section 2.21(b) within five Business Days after Credit Party Representative’s or Administrative Agent’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Administrative Agent shall have been obtained but the consent of one or more of such other Lenders (each, a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (each, a “Terminated Lender”), Administrative Agent may (in the case of an Increased-Cost Lender, only after receiving written request from Credit Party Representative to remove such Increased-Cost Lender), by giving written notice to Credit Party Representative and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.6 and such Terminated Lender shall pay the fees, if any, payable in connection with any such assignment from an Increased-Cost Lender, a Non-Consenting Lender, or a Defaulting Lender; provided, (i) on the date of such assignment, such Replacement Lender shall pay to such Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of such Terminated Lender, (B) an amount equal to all unreimbursed drawings that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10; (ii) on the date of such assignment, the Credit Parties shall pay
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any amounts payable to such Terminated Lender pursuant to Sections 2.17, 2.18 or 2.19 or under any other Credit Document with respect to facts and circumstances prior to the effective date of such assignment; provided, such assignment shall not be deemed a prepayment and the Credit Parties shall not be required to pay any prepayment premium or other similar amount that would be payable pursuant to the Fee Letter in connection with a voluntary prepayment or otherwise; (iii) such assignment does not conflict with applicable law; and (iv) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. Each Lender agrees that if Administrative Agent exercises its option hereunder to cause an assignment by such Lender as a Terminated Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.6. In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.6 on behalf of a Terminated Lender, and any such documentation so executed by Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.6.
2.23.    Companies as Co-Borrowers.
(a)    Joint and Several Liability. All Obligations of Companies under this Agreement and the other Credit Documents shall be joint and several Obligations of each Company. Notwithstanding anything to the contrary in this Agreement or any other Credit Document, the Obligations of each Company hereunder, solely to the extent that such Company did not receive proceeds of Loans from any borrowing hereunder, shall be limited to a maximum aggregate amount equal to the largest amount that would not render its Obligations subject to avoidance as a fraudulent transfer or conveyance under any Fraudulent Transfer Laws, in each case, after giving effect to all other liabilities of such Company, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Company in respect of intercompany Indebtedness to any other Credit Party or Affiliates of any other Credit Party to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by such Credit Party hereunder) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation or contribution of such Company pursuant to (i) applicable law or (ii) any agreement providing for an equitable allocation among such Company and other Affiliates of any Credit Party of Obligations arising under Guaranties by such parties.
(b)    Subrogation; Contribution. Until the Obligations shall have been Paid in Full, each Company shall withhold exercise of any right of subrogation, contribution or any other right to enforce any remedy that it now has or may hereafter have against any other Company or
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any Guarantor of the Obligations. Each Company further agrees that, to the extent the waiver of its rights of subrogation, contribution and remedies as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any such rights such Company may have against any other Company, any collateral or security or any Guarantor shall be junior and subordinate to any rights Collateral Agent may have against any other Company, any such collateral or security and any Guarantor. Companies under this Agreement and the other Credit Documents together desire to allocate among themselves, in a fair and equitable manner, their Obligations arising under this Agreement and the other Credit Documents. Accordingly, in the event any payment or distribution is made on any date by any Company under this Agreement and the other Credit Documents (a “Funding Company”) such that its Obligation Aggregate Payments exceed its Obligation Fair Share as of such date, that Funding Company shall be entitled to a contribution from each other Company in the amount of such other Company’s Obligation Fair Share Shortfall as of such date, with the result that all such contributions will cause each Company’s Obligation Aggregate Payments to equal its Obligation Fair Share as of such date. “Obligation Fair Share” means, with respect to any Company as of any date of determination, an amount equal to (i) the ratio of (x) the Obligation Fair Share Contribution Amount with respect to such Company to (y) the aggregate of the Obligation Fair Share Contribution Amounts with respect to all Companies, multiplied by (ii) the aggregate amount paid or distributed on or before such date by all Funding Companies under this Agreement and the other Credit Documents in respect of the Obligations. “Obligation Fair Share Shortfall” means, with respect to any Company as of any date of determination, the excess, if any, of the Obligation Fair Share of such Company over the Obligation Aggregate Payments of such Company. “Obligation Fair Share Contribution Amount” means, with respect to any Company as of any date of determination, the maximum aggregate amount of the Obligations of such Company under this Agreement and the other Credit Documents that would not render its Obligations subject to avoidance as a fraudulent transfer or conveyance under any Fraudulent Transfer Laws; provided, solely for purposes of calculating the Obligation Fair Share Contribution Amount with respect to any Company for purposes of this Section 2.23, any assets or liabilities of such Company arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Company. “Obligation Aggregate Payments” means, with respect to any Company as of any date of determination, an amount equal to (i) the aggregate amount of all payments and distributions made on or before such date by such Company in respect of this Agreement and the other Credit Documents (including in respect of this Section 2.23), minus (ii) the aggregate amount of all payments received on or before such date by such Company from any other Company as contributions under this Section 2.23. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Company. The allocation among Companies of their Obligations as set forth in this Section 2.23 shall not be construed in any way to limit the liability of any Company hereunder or under any other Credit Document.
(c)    [Intentionally Reserved].
(d)    Obligations Absolute. Each Company hereby waives, for the benefit of the Beneficiaries, (i) any right to require any Beneficiary, as a condition of payment or
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performance by such Company, to (A) proceed against any other Company, any Guarantor or any other Person, (B) proceed against or exhaust any security held from any other Company, any Guarantor or any other Person, (C) proceed against or have resort to any balance of any Deposit Account, Securities Account, or any other credit on the books of any Beneficiary in favor of any other Company, any Guarantor or any other Person, or (D) pursue any other remedy in the power of any Beneficiary whatsoever; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any other Company or any Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any other Company or any Guarantor from any cause, other than Payment in Full of all Obligations; (iii) any defense based upon any statute or rule of law that provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon any Beneficiary’s errors or omissions in the administration of the Obligations, except behavior that amounts to willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction; (v) (A) any principles or provisions of law, statutory or otherwise, that are or might be in conflict with the terms hereof and any legal or equitable discharge of such Company’s Obligations, (B) the benefit of any statute of limitations affecting such Company’s liability hereunder or the enforcement hereof, (C) any rights to set offs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or ensure any security interest or lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder or under any Secured Hedge Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to any Company and notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof; and (vii) any defenses or benefits that may be derived from or afforded by law that limit the liability of or exonerate guarantors or sureties, or that may conflict with the terms hereof.
2.24.    Appointment of Credit Party Representative.
(a)    Each Credit Party hereby appoints Holdings as “Credit Party Representative” to act as its agent, attorney-in-fact and representative for the purposes of issuing Notices, giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or under any of the other Credit Documents, executing Credit Documents on its behalf (including the Fee Letter), delivering all documents, reports, financial statements and written materials required to be delivered by any Credit Party under this Agreement or any of the other Credit Documents, taking all other actions (including in respect of compliance with covenants and amendments to the Credit Documents) on behalf of any Credit Party under the Credit Documents, and all other purposes incidental to any of the foregoing. Holdings hereby accepts the foregoing appointment as Credit Party Representative.
(b)    Each Agent and each Lender may regard any notice or other communication pursuant to any Credit Document from Credit Party Representative as a notice or
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communication from all Credit Parties, and may give any notice or communication required or permitted to be given to any Credit Party hereunder to Credit Party Representative. Each Credit Party agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by Credit Party Representative shall be deemed for all purposes to have been made by such Credit Party and shall be binding upon and enforceable against such Credit Party to the same extent as if the same had been made directly by such Credit Party.
SECTION 3.    CONDITIONS PRECEDENT
3.1.    Closing Date. The obligation of each Lender to enter into this Agreement and to make any Loan on the Closing Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions on or before the Closing Date (in each case, except to the extent required to be delivered or completed in accordance with Section 5.15):
(a)    Credit Documents. Administrative Agent shall have received sufficient copies of each Credit Document to be dated as of the Closing Date, in each case, as Administrative Agent shall request, in form and substance satisfactory to Administrative Agent, and duly executed and delivered by each applicable Credit Party and each other Person party thereto.
(b)    Organizational Documents; Incumbency. Administrative Agent shall have received in respect of each Credit Party (i) sufficient copies of each Organizational Document as Administrative Agent shall request, in each case, certified by an Authorized Officer of such Credit Party and, to the extent applicable, certified as of the Closing Date or a recent date prior thereto by the appropriate Governmental Authority; (ii) signature and incumbency certificates of the officers of such Credit Party executing any Credit Documents to which it is a party; (iii) resolutions of the Board of Directors of each Credit Party approving and authorizing the execution, delivery and performance of the Credit Documents, and the ABL Credit Documents, in each case, to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by an appropriate Authorized Officer as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Closing Date; and (v) such other documents as Administrative Agent may reasonably request.
(c)    Organizational and Capital Structure. The organizational structure and capital structure of Holdings and its Subsidiaries, both before and after giving effect to the transactions contemplated by the ABL Credit Documents, shall be as set forth on Schedule 4.2.
(d)    ABL Credit Documents.
(i)    (A) The ABL Credit Documents shall each be in form and substance satisfactory to Administrative Agent in its sole discretion and shall have been executed and delivered and be in full force and effect in accordance with their respective terms, and no provision thereof shall have been modified or waived in any respect
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determined by Administrative Agent to be material, in each case, without the consent of Administrative Agent, (B) all conditions to the transactions contemplated by the ABL Credit Documents shall have been satisfied prior to or concurrently with the effectiveness of this Agreement or the fulfillment of any such conditions shall have been waived with the consent of Administrative Agent, (C) the transactions contemplated by the ABL Credit Documents shall have become effective in accordance with the terms thereof and (D) the ABL Lenders shall have advanced to Companies gross proceeds of the ABL Loans in an aggregate amount not more than $40,000,000 pursuant to the ABL Credit Agreement.
(ii)    Administrative Agent shall have received a fully executed or conformed copy of each ABL Credit Document and any documents executed in connection therewith on or prior to the Closing Date (including all exhibits, schedules, annexes or other attachments thereto, any amendment, restatement, supplement or other modification thereof, and any related side letter).
(e)    [Intentionally Reserved].
(f)    Existing Indebtedness. On the Closing Date, Holdings and its Subsidiaries shall have (i) repaid in full all Existing Indebtedness, (ii) terminated any commitments to lend or make other extensions of credit thereunder, (iii) delivered to Administrative Agent all documents or instruments necessary to release all Liens securing Existing Indebtedness or other obligations of Holdings and its Subsidiaries thereunder being repaid on the Closing Date, and (iv) made arrangements satisfactory to Administrative Agent with respect to the cancellation of any letters of credit outstanding thereunder.
(g)    Transaction Costs. Credit Party Representative shall have delivered to Administrative Agent Credit Party Representative’s reasonable best estimate of the Transaction Costs (other than fees payable to any Agent or any Lender).
(h)    Governmental Authorizations and Consents. Each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case, that are necessary or advisable in connection with the transactions contemplated by the Credit Documents and the ABL Credit Documents to occur on or prior to the Closing Date (including the entering into of the Credit Documents and the ABL Credit Documents to be delivered on the Closing Date) and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents or the ABL Credit Documents to occur on or prior to the Closing Date or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
(i)    Real Estate Assets. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to
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herein, perfected First Priority Lien in each fee-owned Material Real Estate Asset, Administrative Agent and Collateral Agent shall have received from each applicable Credit Party the Mortgaged Real Estate Documents, for each such fee-owned Material Real Estate Asset.
(j)    Personal Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and perfected First Priority Lien in the personal property Collateral, each Credit Party shall have delivered to Collateral Agent:
(i)    evidence satisfactory to Collateral Agent of the compliance by each Credit Party with their obligations under the Pledge and Security Agreement and the other Collateral Documents (including their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing Deposit Accounts or Securities Accounts as provided therein);
(ii)    a completed Collateral Questionnaire dated the Closing Date, together with all attachments contemplated thereby;
(iii)    duly executed and, as appropriate, notarized Intellectual Property Security Agreements, in proper form for filing or recording in all appropriate places in all applicable jurisdictions;
(iv)    opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the Liens in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Credit Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case, in form and substance reasonably satisfactory to Collateral Agent; and
(v)    evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including (i) a Collateral Access Agreement executed by the landlord of each Leasehold Property, and (ii) an Intercompany Note and Subordination) and made or caused to be made any other filing and recording reasonably required by Collateral Agent.
(k)    Environmental Reports. Administrative Agent shall have received reports and other information, in form, scope and substance satisfactory to Administrative Agent, regarding environmental matters relating to the Facilities.
(l)    Financial Statements; Projections. The Lenders shall have received from Credit Party Representative (i) the Historical Financial Statements, (ii) pro forma consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the Closing Date, and reflecting the consummation of the transactions contemplated by the ABL Credit Documents, the related financings and the other transactions contemplated by the Credit Documents to occur on or prior to the Closing Date, which pro forma financial statements shall be in form and substance
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satisfactory to Administrative Agent, (iii) pro forma consolidated and consolidating income statements of Holdings and its Subsidiaries as at the Closing Date, and reflecting the consummation of the transactions contemplated by the ABL Credit Documents, the related financings and the other transactions contemplated by the Credit Documents to occur on or prior to the Closing Date, and (iv) the Projections.
(m)    Evidence of Insurance. Collateral Agent shall have received a certificate from each applicable Credit Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of the Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 5.5.
(n)    Opinions of Counsel to Credit Parties. The Agents, the Lenders and their respective counsel shall have received executed copies of the favorable written opinions of Latham & Watkins LLP, New York, California and Delaware counsel to the Credit Parties, Taft Stettinius & Hollister LLP, Ohio counsel to the Credit Parties, and Ballard Spahr LLP, Minnesota counsel to the Credit Parties, in each case, as to such matters as Administrative Agent may reasonably request, dated as of the Closing Date, and in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to the Agents and the Lenders).
(o)    Fees. Companies shall have paid to each Agent and each Lender the fees payable on or before the Closing Date referred to in Section 2.10 and all expenses payable pursuant to Section 10.2 that have accrued to the Closing Date.
(p)    Solvency Certificate. On the Closing Date, Administrative Agent shall have received a Solvency Certificate from each Company dated as of the Closing Date and addressed to Administrative Agent and Lenders, and in form, scope and substance satisfactory to Administrative Agent, with appropriate attachments and demonstrating that after giving effect to the consummation of the transactions contemplated by this Agreement, the other Credit Documents and the ABL Credit Documents to be consummated on the Closing Date and the Credit Extensions to be made on the Closing Date, each Company and its Subsidiaries each is and will be Solvent.
(q)    Closing Date Certificate. Administrative Agent shall have received a Closing Date Certificate, together with all attachments thereto.
(r)    [Intentionally Reserved].
(s)    No Litigation. There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of Administrative Agent, singly or in the aggregate, materially impairs the transactions contemplated by the ABL Credit Documents, the financing thereof or any of the other transactions contemplated by the Credit Documents or the ABL Credit Documents, or that could have a Material Adverse Effect.
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(t)    Due Diligence. Administrative Agent and each Lender shall have completed, to its satisfaction, all legal, tax, environmental, business, industry, food safety, regulatory, compliance and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Credit Parties in scope and determination satisfactory to Administrative Agent and the Requisite Lenders in their respective discretion (including satisfactory review of (i) the lease agreements for each Leasehold Property, (ii) all Material Contracts and (iii) management background checks), and, other than changes occurring in the ordinary course of business, no information or materials are or should have been available to the Credit Parties as of the Closing Date that are materially inconsistent with the information and materials previously provided to Administrative Agent and the Requisite Lenders for their respective due diligence review of the Credit Parties.
(u)    Appraisal; Third Party Reports. Administrative Agent shall have received third party accounting and, quality of earnings (including cash proof analysis) and confirmation of no outstanding tax liens, any third party reports delivered in in connection with the ABL Credit Documents, and other consultants’ reports, in each case, in form, scope and substance satisfactory to Administrative Agent and performed by one or more firms acceptable to Administrative Agent.
(v)    Certain Material Contracts. Administrative Agent shall have received evidence that Lifecore Biomedical, LLC has entered into that certain Amendment No. 2 to Amended and Restated Supply Agreement by and between Lifecore Biomedical, LLC, a Minnesota limited liability company, and Alcon Pharmaceuticals Ltd., dated on or about the Closing Date.
(w)    Minimum EBITDA. The pro forma income statement delivered pursuant to Section 3.1(l) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that Holdings and its Subsidiaries shall have generated for the trailing (12) month period ending November 30, 2020 Consolidated Adjusted EBITDA of at least $32,000,000.
(x)    Minimum Liquidity. Holdings and its Subsidiaries shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Closing Date and immediately after giving effect to any Credit Extensions hereunder or ABL Loans to be made on the Closing Date, including the payment of all Transaction Costs hereunder or similar amount in respect of the ABL Credit Documents required to be paid in Cash, the Credit Parties shall have at least (i) $1,000,000 of Qualified Cash on hand Date and (ii) $15,000,000 of Consolidated Liquidity.
(y)    Maximum Leverage Ratio. The pro forma balance sheet delivered pursuant to Section 3.1(l) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Closing Date and immediately after giving effect to any Credit Extensions to be made on the Closing Date, including the payment of all Transaction Costs required to be paid in Cash, the ratio of (i) total Indebtedness for Holdings and its Subsidiaries as of the Closing Date to (ii) pro forma Consolidated Adjusted EBITDA for the trailing twelve (12) month period ending November 30, 2020 shall not be greater than 6.00:1.00.
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(z)    No Material Adverse Change. Since May 31, 2020, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
(aa)    [Intentionally Reserved].
(bb)    Service of Process. On the Closing Date, Administrative Agent shall have received evidence that each Credit Party has appointed an agent in New York City for the purpose of service of process in New York City and such agent shall agree in writing to give Administrative Agent notice of any resignation of such service agent or other termination of the agency relationship.
(cc)    [Intentionally Reserved].
(dd)    KYC Documentation; Beneficial Ownership Certificate.
(i)    At least 10 days prior to the Closing Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(ii)    At least five days prior to the Closing Date, any Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Credit Party.
Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, the Requisite Lenders or the Lenders, as applicable on the Closing Date.
3.2.    Conditions to Each Credit Extension.
(a)    Conditions Precedent. The obligation of each Lender to make any Loan, on any Credit Date, including the Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i)    Administrative Agent shall have received a duly executed and delivered Funding Notice and any applicable letters of direction required by Administrative Agent in connections with the disbursement of any funds;
(ii)    as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided, in each case,
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such materiality qualifier shall not apply to any representations and warranties to the extent already qualified or modified by materiality or similar concept in the text thereof;
(iii)    as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute a Default or an Event of Default; and
(iv)    in the case of any such Credit Extension consisting of Multi-Draw Term Loans:
(A)    with respect to any Credit Extensions requested on such Credit Date, (I) such Credit Extensions shall not exceed the Multi-Draw Term Loan Commitments immediately prior to giving effect to such Credit Extension and (II) Availability shall be $0 or greater before and after giving effect to such Credit Extensions; and
(B)    after giving effect to such Credit Extension (excluding (I) any proceeds thereof that will be applied in the ordinary course of business for purposes permitted under Section 2.5 within 10 Business Days after such Credit Extension and (II) Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds that are on deposit in a Controlled Account in respect of which the Credit Parties have entered into a definitive agreement for the purchase or other acquisition of Additional Assets or for the replacement of Replaced Assets, as the case may be), the aggregate Cash and Cash Equivalents of Companies and their Subsidiaries will not exceed $5,000,000.
Any Agent or the Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or the Requisite Lenders, such request is warranted under the circumstances.
(b)    Notices. Any Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent. In lieu of delivering a Notice, Credit Party Representative may give Administrative Agent telephonic notice by the required time of any proposed borrowing or conversion/continuation, as the case may be; provided, each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or before the close of business on the date that telephonic notice is given. In the event of a discrepancy between the telephonic notice and the written notice, the written notice shall govern. In the case of any Notice that is irrevocable once given, if Credit Party Representative provides telephonic notice in lieu of written notice, such telephonic notice shall also be irrevocable once given. No Agent or Lender shall incur any liability to any Credit Party in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other natural person authorized on behalf of Credit Party Representative or for otherwise acting in good faith.
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(c)    Each request for a borrowing of a Loan by Companies hereunder shall constitute a representation and warranty by the Credit Parties as of the applicable Credit Date that the conditions contained in Section 3.2(a) have been satisfied.
SECTION 4.    REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this Agreement and to make each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent and each Lender, on each Credit Date, including the Closing Date, that the following statements are true and correct (it being understood and agreed that the representations and warranties made on the Closing Date are deemed to be made concurrently with the consummation of the transactions contemplated by the ABL Credit Documents):
4.1.    Organization; Requisite Power and Authority; Qualification. Each of Holdings and its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization as identified on Schedule 4.1, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect.
4.2.    Capital Stock and Ownership. The Capital Stock of each of Holdings and its Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the Closing Date, there is no existing option, warrant, call, right, commitment or other agreement to which Holdings or any of its Subsidiaries is a party requiring, and there is no membership interest or other Capital Stock of Holdings or any of its Subsidiaries outstanding that upon conversion or exchange would require, the issuance by Holdings or any of its Subsidiaries of any additional Capital Stock of Holdings or any of its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase additional Capital Stock of Holdings or any of its Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Holdings and each of its Subsidiaries in their respective Subsidiaries as of the Closing Date both before and after giving effect to the transactions contemplated by the Credit Documents.
4.3.    Due Authorization. The execution, delivery and performance of the Credit Documents have been duly authorized by all necessary action on the part of each Credit Party that is a party thereto.
4.4.    No Conflict. The execution, delivery and performance by the Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not (a) violate any provision of any law or any governmental rule or regulation applicable to Holdings or any of its Subsidiaries, any of the Organizational Documents of Holdings or any of its Subsidiaries, or any order, judgment or decree of any court or other agency of government binding on Holdings or any of its
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Subsidiaries; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Material Contract or any ABL Credit Document; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of Holdings or any of its Subsidiaries (other than any Liens created under any of the Credit Documents in favor of Collateral Agent, for the benefit of the Secured Parties); or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Material Contract or any ABL Credit Document, except for such approvals or consents that have been obtained on or before the Closing Date and have been disclosed in writing to the Lenders and except for any such approvals or consents the failure of which to obtain will not have a Material Adverse Effect and will not materially reduce the value of the Collateral.
4.5.    Governmental Consents. The execution, delivery and performance by the Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority, and except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing or recordation, as of the Closing Date.
4.6.    Binding Obligation. Each Credit Document required to be delivered hereunder has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
4.7.    Historical Financial Statements. The Historical Financial Statements were prepared in conformity with GAAP and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons described in such financial statements as at the respective dates thereof and the results of operations and cash flows, on a consolidated basis, of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. As of the Closing Date, neither Holdings nor any of its Subsidiaries has any contingent liability or liability for Taxes long-term lease or unusual forward or long-term commitment that is not reflected in the Historical Financial Statements or the notes thereto and that in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole.
4.8.    Projections. On and as of the Closing Date, the projections of Holdings and its Subsidiaries for the period of the Fiscal Year ending May 31, 2020 through and including the Fiscal Year ending on or about May 30, 2024, including quarterly projections for all periods prior to May 30, 2022 and annual projections for each Fiscal Year thereafter (the “Projections”), are based on good faith estimates and assumptions made by the management of Holdings and its Subsidiaries; provided, the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the
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differences may be material; provided, further, as of the Closing Date, management of Holdings and its Subsidiaries believed that the Projections were reasonable and attainable.
4.9.    No Material Adverse Change. Since May 31, 2020, no event, circumstance or change has occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
4.10.    No Restricted Junior Payments. Since May 31, 2020, neither Holdings nor any of its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to Section 6.5.
4.11.    Adverse Proceedings. Except as set forth on Schedule 4.11, there are no Adverse Proceedings that could reasonably be expected to result in a Material Adverse Effect or liability of Holdings, any of its Subsidiaries or any of their respective Affiliates in excess of $1,000,000 individually or $5,000,000 in the aggregate for all such Adverse Proceedings, in each case, during the term of this Agreement. Except as set forth on Schedule 4.11, neither Holdings nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental Laws), or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that could reasonably be expected to result in a Material Adverse Effect or liability of Holdings, any of its Subsidiaries or any of their respective Affiliates in excess of $1,000,000 individually or $5,000,000 in the aggregate for all such defaults, in each case, during the term of this Agreement.
4.12.    Payment of Taxes. All federal, state income and other material Tax returns and reports of Holdings and its Subsidiaries required to be filed by any of them have been timely filed, and all federal, state income and other material Taxes due and payable and all assessments, fees and other governmental charges upon Holdings and its Subsidiaries and upon their respective properties, assets, income, businesses and franchises that are due and payable have been paid when due and payable (other than any Taxes the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of Holdings and its Subsidiaries). There is no proposed Tax assessment against Holdings or any of its Subsidiaries that is not being actively contested by Holdings or such Subsidiary in good faith and by appropriate proceedings; provided, such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.
4.13.    Properties.
(a)    Title. Except as set forth on Schedule 4.13(a), each of Holdings and its Subsidiaries has (i) good, sufficient and legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the case of licensed interests in Intellectual Property), and (iv) good title to (in the case of all other personal property), all of their respective properties and assets reflected in their respective Historical Financial Statements referred to in Section 4.7 and
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in the most recent financial statements delivered pursuant to Section 5.1, in each case, except for assets disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted under Section 6.9. Except as permitted by this Agreement, all such properties and assets are free and clear of Liens.
(b)    Real Estate. As of the Closing Date, Schedule 4.13(b) contains a true, accurate and complete list of (i) all Real Estate Assets, including an indication as to whether each such Real Estate Asset constitutes a Material Real Estate Asset (within the meaning of clauses (i) or (ii) of the definition thereof), and (ii) all leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting any Real Estate Asset of any Credit Party, regardless of whether such Credit Party is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment. Each agreement listed in clause (ii) of the immediately preceding sentence is in full force and effect, and no Credit Party has any knowledge of any default that has occurred and is continuing thereunder, and each such agreement constitutes the legally valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
4.14.    Environmental Matters. Neither Holdings nor any of its Subsidiaries nor any of their respective Facilities or operations are subject to any outstanding written order, consent decree or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim or any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries has received any letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law. There are and, to each of Holdings’ and its Subsidiaries’ knowledge, have been no conditions, occurrences or Hazardous Materials Activities that could reasonably be expected to form the basis of an Environmental Claim against Holdings or any of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 4.14, neither Holdings nor any of its Subsidiaries nor, to any Credit Party’s knowledge, any predecessor of Holdings or any of its Subsidiaries has filed any notice under any Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, and none of Holdings’ or any of its Subsidiaries’ operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260270 or any state equivalent (except for products used in the ordinary course of business, such as paint and cleaning products which are ancillary to the operations of Holdings and its Subsidiaries). Compliance with all current or reasonably foreseeable future requirements pursuant to or under Environmental Laws could not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. Except as set forth on Schedule 4.14, no event or condition has occurred or is occurring with respect to Holdings or any of its Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials or any Hazardous Materials Activity that, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect.
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4.15.    No Defaults. Neither Holdings nor any of its Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual Obligations, and no condition exists that, with the giving of notice or the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect or liability of Holdings, any of its Subsidiaries or any of their respective Affiliates in excess of $1,000,000, individually or $5,000,000 in the aggregate for all such defaults, in each case, during the term of this Agreement.
4.16.    Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the Material Contracts in effect on the Closing Date, and, together with any updates provided pursuant to Section 5.1(l), (a) all such Material Contracts are in full force and effect in all material respects, (b) no defaults currently exist thereunder, and (c) each such Material Contract has not been amended, waived or otherwise modified except as permitted under this Agreement.
4.17.    Governmental Regulation. Neither Holdings nor any of its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation that may limit its ability to incur Indebtedness or that may otherwise render all or any portion of the Obligations unenforceable. Neither Holdings nor any of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.
4.18.    Federal Reserve Regulations; Exchange Act. Neither Holdings nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No portion of the proceeds of any Credit Extension has or will be used in any manner, whether directly or indirectly, that causes or could reasonably be expected to cause, such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation thereof or to violate the Exchange Act.
4.19.    Employee Matters. Neither Holdings nor any of its Subsidiaries is engaged in any unfair labor practice. There is (a) no unfair labor practice complaint pending against Holdings or any of its Subsidiaries or, to the best knowledge of each Credit Party, threatened against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries or, to the best knowledge of each Credit Party, threatened against any of them, (b) no strike or work stoppage in existence or threatened involving Holdings or any of its Subsidiaries, and (c) to the best knowledge of each Credit Party, no union representation question existing with respect to the employees of Holdings or any of its Subsidiaries and, to the best knowledge of each Credit Party, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect or result in liabilities in excess of $1,000,000 individually or $5,000,000 in the aggregate
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for all such liabilities. Neither Holdings nor any of its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar federal or state law that remains unpaid or unsatisfied and could reasonably be expected to result in a Material Adverse Effect or is in excess of $1,000,000 individually or $5,000,000 in the aggregate for all such liabilities.
4.20.    Employee Benefit Plans. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (i) Holdings, each of its Subsidiaries and each of their respective ERISA Affiliates are in compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan and have performed all their obligations under each Employee Benefit Plan, (ii) each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter that would cause such Employee Benefit Plan to lose its qualified status, (iii) no liability to the PBGC (other than required premium payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under Title IV of ERISA has been or is expected to be incurred by Holdings, any of its Subsidiaries or any of their ERISA Affiliates and (iv) no ERISA Event has occurred or is reasonably expected to occur. Except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Holdings, any of its Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such Pension Plan) did not exceed the aggregate current value of the assets of such Pension Plan. As of the most recent valuation date for each Multiemployer Plan for which the actuarial report is available, the potential liability of Holdings, its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA is $0. Holdings, each of its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
4.21.    Certain Fees. Except as set forth on Schedule 4.21, no broker’s or finder’s fee or commission will be payable with respect to the transactions contemplated by this Agreement or the ABL Credit Documents, except as payable to the Agents and the Lenders.
4.22.    Solvency
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. Each Credit Party is and, upon the incurrence of any Credit Extension by such Credit Party on any date on which this representation and warranty is made, will be Solvent.
4.23.    [Intentionally Reserved].
4.24.    Compliance with Laws. Except to the extent disclosed in due diligence pursuant to Section 3.1(t) and/or to the extent expressly disclosed (and clearly identified as such) in the disclosure schedules hereto, each of Holdings and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property, including compliance, in all material respects, with all applicable Privacy Laws and Food Laws and all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of Holdings or any of its Subsidiaries (it being understood, in the case of any statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities that are specifically referred to in any other provision of this Agreement, Holdings and its Subsidiaries shall also be required to represent and/or comply with, as applicable, the express terms of such provision).
4.25.    Disclosure; Beneficial Ownership Certification.
(a)    No representation or warranty of any Credit Party contained in any Credit Document or in any other documents, certificates or written statements furnished to any Agent or any Lender by or on behalf of Holdings or any of its Subsidiaries for use in connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact (known to any Credit Party, in the case of any document not furnished by any of them) necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by the Credit Parties to be reasonable at the time made, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. There are no facts known (or that should upon the reasonable exercise of diligence be known) to any Credit Party (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to the Lenders for use in connection with the transactions contemplated hereby.
(b)    As of the Closing Date, the information included in each Beneficial Ownership Certification is true and correct in all respects.
4.26.    Sanctions; Anti-Bribery and Anti-Corruption Laws; Anti-Terrorism and Anti-Money Laundering Laws. None of Holdings, any of its Subsidiaries, any Affiliate of any such Person, or any of their respective Directors, officers or, to the knowledge of any Credit Party, employees, agents, or advisors is a Sanctioned Person. Except to the extent relating to
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compliance with Anti-Bribery and Anti-Corruption Laws disclosed in due diligence pursuant to Section 3.1(t) and/or to the extent expressly disclosed (and clearly identified as such) in the disclosure schedules hereto, each of Holdings and its Subsidiaries and their respective Directors, officers and, to the knowledge of any Credit Party, employees, agents, advisors and Affiliates is in compliance with all and has not violated any (i)  Sanctions, (ii) Anti- Bribery and Anti-Corruption Laws, or (iii)  Anti-Terrorism and Anti-Money Laundering Laws. No part of the proceeds of any Credit Extension has or will be used, directly or indirectly, (A) for the purpose of financing any activities or business of or with any Sanctioned Person or in any Sanctioned Country, (B) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value to any Person in violation of any Anti- Bribery and Anti-Corruption Laws, or (C) otherwise in any manner that would result in a violation of Sanctions, Anti-Terrorism and Anti-Money Laundering Laws, or Anti- Bribery and Anti-Corruption Laws by any Person. Holdings and its Subsidiaries have established and currently maintain policies, procedures and controls that are designed (and otherwise comply with applicable law) to ensure that each of Holdings, its Subsidiaries and their respective Affiliates, and each of their respective Directors, officers, employees and agents, is and will continue to be in compliance with all applicable current and future Sanctions, Anti-Terrorism and Anti-Money Laundering Laws, and Anti-Bribery and Anti-Corruption Laws.
4.27.    Privacy Laws. No privacy or information security enforcement action, investigation, litigation or claim, including under the Privacy Laws, has been instituted or otherwise exists against Holdings or any of its Subsidiaries. Subject to Section 5.15, Holdings and its Subsidiaries have established and currently maintain policies, procedures and controls that are designed (and otherwise comply with applicable law) to ensure that each of Holdings, its Subsidiaries and their respective Affiliates, and each of their respective Directors, officers, employees and agents, is and will continue to be in material compliance with all applicable current and future Privacy Laws.
4.28.    Food Laws. All products designed, developed, manufactured, prepared, assembled, packaged, tested, labeled, distributed, marketed or sold by or on behalf of the Credit Parties that are subject to the jurisdiction of the FDA or a comparable Governmental Authority have been and are being designed, developed, tested, manufactured, prepared, assembled, packaged, distributed, labeled, marketed and sold in compliance with all applicable Food Laws, including product approval or clearance, good manufacturing practices, labeling, advertising and promotion, record-keeping, adverse event reporting, and have been and are being tested, investigated, designed, developed, manufactured, prepared, assembled, packaged, labeled, distributed, marketed, and sold in compliance with each applicable Food Law. Except for ordinary course inquiries or inspections by Governmental Authorities, neither Holdings nor any of its Subsidiaries is presently subject to any notice of any proceeding (including any suit, action, litigation, action, or investigation) that remains unresolved related to noncompliance with Food Laws. Subject to Section 5.15, Holdings and its Subsidiaries have established and currently maintain policies, procedures and controls that are designed (and otherwise comply with applicable law) to ensure that each of Holdings, its Subsidiaries and their respective Affiliates, and each of their respective Directors, officers, employees and agents, is and will continue to be in compliance with all applicable current and future Food Laws.
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4.29.    Health Care Laws.
(a)    Holdings and its Subsidiaries, and to the knowledge of any Credit Party, each of their respective employees solely in respect of the exercise of their respective duties on behalf of Holdings or its Subsidiaries are, and at all times have been in compliance in all material respects with all Health Care Laws.
(b)    No Credit Party nor any of its Subsidiaries has (i) received any written notice, citation, suspension, revocation, warning, or request for repayment from, nor, to the knowledge of any Credit Party, been the subject of any investigation by, a Governmental Authority that alleges that such Credit Party or any employee, officer, director, manager or owner of such Credit Party has violated in any Health Care Laws or that requires any adjustment, modification or alteration in such Credit Party’s operations, activities, services or financial condition that has not been resolved, including any qui tam lawsuits of which such Credit Party has knowledge and is legally permitted to disclose, risk adjustment data validation or recovery audit contractor audits, (ii) been subject to a corporate integrity agreement, deferred prosecution agreement, settlement agreement or order mandating or prohibiting future or past activities, or (iii) settled any actions brought by any Governmental Authority with respect to any actual or alleged violation of any Health Care Laws.
(c)    There are no restrictions imposed by any Governmental Authority upon any Credit Party’s business, activities or services that would restrict or prevent such Credit Party from operating as it currently operates.
(d)    Each Credit Party meets and has met in all material respects the requirements for participation in, and receipt of payment from, the Federal Health Care Programs (as such term is defined in 42 U.S.C. § 1320a-7b(f) (including TRICARE and U.S. Department of Veterans Affairs Programs)) in which such Credit Party currently participates or has participated. No Credit Party has for itself or any other Person, submitted or caused to be submitted to a Governmental Authority or any government plan a false or fraudulent claim for payment that is material to such Credit Party or such other person.
(e)    Each Credit Party has timely filed, after taking into account any permitted time extensions, all regulatory reports, schedules, statements, documents, filings, submissions, forms, registrations and other documents, together with any amendments required to be made with respect thereto, that such Credit Party was required to file with any Governmental Authority, and all such regulatory filings complied with applicable Health Care Laws and orders. Each Credit Party has a compliance program that meets the requirements of its Governmental Authority contracts and Health Care Laws.
(f)    No Credit Party has any knowledge of any inspections, audits, inquiries, investigations or proceedings under Health Care Laws of such Credit Party or, to the knowledge of such Credit Party, of any of its material customers, involving such Credit Party or its products.
(g)    Neither any Credit Party nor any employee, officer, director, manager, or owner of a such Credit Party:
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(i)    is or ever has been (a) debarred, excluded or suspended from participation in Medicare, Medicaid or any “federal health care program” as defined in 42 U.S.C. § 1320a-7b(f), or (b) sanctioned, indicted or convicted of a crime, or pleaded nolo contendere or to sufficient facts, in connection with any allegation of violation of Health Care Laws or any “federal health care program” requirement;
(ii)    has been convicted of a crime in connection with the delivery of health care services or participation in Medicare, Medicaid or other governmental healthcare program or been indicted, charged or, to each Credit Party’s knowledge, under an investigation for any violation of applicable Health Care Laws;
(iii)    is or ever has been party to an individual or corporate integrity agreement with the Office of Inspector General of the United States Department of Health and Human Services or otherwise has any continuing reporting obligations pursuant to any deferred prosecution, settlement or other integrity agreement with any Governmental Authority;
(iv)    is or ever has been subject to a civil monetary penalty assessed under Section 1128A of the Social Security Act, sanctioned, indicted or convicted of a crime, or pleaded nolo contendere or to sufficient facts, in connection with any allegation of violation of law; or
(v)    is or ever has been listed on the General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs.
4.30.    FDA Laws. Each of Holdings and its Subsidiaries is, and at all times has been, in compliance with the FDCA and all regulations promulgated thereunder and all other applicable laws and regulations of the relevant Government Authorities in the countries in which each of Holdings and its Subsidiaries distributes or markets its products, including but not limited to (i) the requirement for and the terms of all necessary FDA Permits, including, without limitation, approvals, clearances, exemptions, and licenses, (ii) current Good Manufacturing Practices (“cGMP”), (iii) establishment registration and product listing, (iv) labeling, promotion, and advertising, (v) Good Clinical Practices (“GCP”) and Good Laboratory Practices (“GLP”), (vi) payment of all application, product and establishment fees, and (vii) recordkeeping and reporting requirements other than those applicable to cGMP, GCP, and GLP (collectively, “FDA Law or Regulation”). Without limiting the generality of the foregoing:
(a)    Each of Holdings and its Subsidiaries holds all material registrations, clearances, approvals, licenses, authorizations, or permits required by or issued under the FDCA (“FDA Permits”), and has made all declarations, submissions, filings, and listings that are necessary to conduct its business and comply with FDA Law or Regulation. Each of Holdings’ and its Subsidiaries’ FDA Permits is in effect or where the failure to have such FDA Permits or make such declarations and filings could not reasonably be expected to have a Material Adverse Effect. A list of all FDA Permits is in full force and effect in all material respects and, to the knowledge of each Credit Party, no suspension, revocation, cancellation or withdrawal of such
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FDA Permit is threatened and there is no basis for believing that such FDA Permit will not be renewable upon expiration or will be suspended, revoked, cancelled or withdrawn, except where the failure to have such FDA Permits could not reasonably be expected to have a Material Adverse Effect.
(b)    Neither Holdings nor any of its Subsidiaries has, or, to the knowledge of any Credit Party, have any of its material customers, received any written notice or communication from any Governmental Authority of any actual or threatened investigation, inquiry, or administrative, judicial or regulatory action, hearing, or enforcement proceeding against Holdings or any of its Subsidiaries regarding any violation of applicable laws. No Credit Party has any knowledge of any material obligation arising under an investigation, inquiry, or administrative, regulatory or judicial action, hearing, or enforcement proceeding by or on behalf of the FDA, warning letter, untitled letter, Form FDA-483, notice of violation letter, consent decree, request for information or other notice, response, or commitment made to or with any Governmental Authority with respect to FDA Law or Regulation, and no such material obligation has been threatened.
(c)    There is no product liability, civil, or criminal action, suit, proceeding, demand, claim, complaint, hearing, investigation, demand letter, warning letter, proceeding or request for information pending against or relating to each of Holdings and its Subsidiaries or to any of its respective employees that involves or arises from a material violation of FDA Law or Regulation, and neither Holdings nor any of its Subsidiaries has material liability for failure to comply with any FDA Law and Regulation. There is no act, omission, event, or circumstance, of which any Credit Party has knowledge, that would reasonably be expected to give rise to or lead to any such action, suit, demand, claim, complaint, hearing, investigation, notice, demand letter, warning letter, proceeding or request for information or any such material liability, except where the existence of any of the foregoing individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect.
(d)    There has not been any violation of any FDA Law and Regulation by Holdings or any of its Subsidiaries in the product development efforts, submissions, production, marketing, distribution, labeling, record keeping and mandatory reports to FDA that could reasonably be expected to require or lead to investigation, corrective action or enforcement, regulatory or administrative action or proceedings relating to Holdings or any of its Subsidiaries, nor has there been any such violation by any officer, director, employee of such Credit Party that involves a matter within or related to the FDA’s jurisdiction relating solely to the FDA-regulated products.
(e)    None of any Credit Party’s FDA-regulated products have been seized, withdrawn, recalled, detained, or subject to a suspension of research, manufacturing, distribution, or commercialization activity by a Governmental Authority. No proceedings in the United States or any other jurisdiction seeking the withdrawal, recall, revocation, suspension, import refusal, or seizure of any product are pending or threatened against any Credit Party. Each FDA-regulated product: (1) has been cleared or approved by FDA as required, prior to distribution, where required; (2) has been designed, manufactured, prepared, assembled, labeled, packaged,
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repackaged, stored, installed, serviced, or processed in substantial compliance with FDA’s Quality System Regulation for devices set forth in 21 C.F.R. Part 820 or cGMP regulations for drugs set forth in 21 C.F.R. Parts 210 and 211, as applicable; and (3) is labeled, promoted and advertised, including but not limited to online and in social media fora, in substantial compliance in all material respects in accordance with its Registration and approved claims and labeling or otherwise as permitted by Governmental Authorities and applicable law.
(f)    No Credit Party has any knowledge of any inspections, audits, inquiries, investigations or proceedings under FDA Law or Regulation of Holdings or any of its Subsidiaries or, to the knowledge of such Credit Party, of any of its material customers, involving such Credit Party or its products.
(g)    No officer, employee or agent of Holdings or any of its Subsidiaries has been, or has been threatened to be: (a) debarred under FDA proceedings under 21 U.S.C. § 335a; (b) disqualified under FDA investigator disqualification proceedings; (c) subject to FDA’s Application Integrity Policy; or (d) subject to any enforcement proceeding arising from material false statements to FDA pursuant to 18 U.S.C. § 1001. Neither Holdings nor any of its Subsidiaries has failed to disclose a material fact required to be disclosed to the FDA or any other Government Authority in material violation of the FDA's policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” set forth in 56 Fed. Reg. 46191 (September 10, 1991) or for the FDA or any other Government Authority to invoke any similar policy.
4.31.    PACA and PASA Representations.
(a)    No Credit Part has, at any time within the preceding twelve (12) fiscal months, except as disclosed in writing to Administrative Agent, received notice under PACA or PASA with respect to past due payables delivered in order to preserve the benefits of any trust under PACA or PASA applicable to assets of a Credit Party or a Subsidiary (in each case other than the alternative customary invoice or other billing statement notice provisions afforded to PACA licensees in the ordinary course of business regarding a supplier reserving rights under PACA).
(b)    Except for disputed payables or payables subject to set off or deduction in the ordinary course of business in an aggregate amount less than $100,000, all payables owing to Persons who may claim the benefit of any trust under PACA or PASA have been paid or will be paid consistent with ordinary course historical and industry practice (and in any event no later than forty-five (45) days after the trade terms applicable to such payables).
(c)    Each Credit Party has taken all actions required (including delivery of any required notices and maintaining sales on statutorily required terms) to establish, obtain and preserve the rights and benefits (including under any trust or similar arrangement under PACA or PASA) available to it under PACA and PASA.
4.32.    ABL Credit Documents.
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(a)    Delivery. The Credit Parties have delivered to Administrative Agent complete and correct copies of, (i) the ABL Credit Documents and of all exhibits and schedules thereto as of the Closing Date, any agreement required to be delivered in connection with any ABL Credit Document at or prior to the closing of the transactions contemplated by such ABL Credit Documents (including any side letter executed or otherwise required by any of the parties thereto), and (ii) copies of any amendment, restatement, supplement or other modification to or waiver under each ABL Credit Document entered into after the date hereof (including any such modification accomplished via a side letter or any other document).
(b)    Credit Parties. Each Person that is a guarantor or a borrower under the ABL Credit Documents is a Credit Party hereunder.
SECTION 5.    AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees with each Agent and each Lender that until Payment in Full of all Obligations, each Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1.    Financial Statements and Other Reports. Credit Party Representative will deliver to Administrative Agent and the Lenders:
(a)    Monthly Reports. As soon as available, and in any event within 30 days after the end of each month (including any months ending prior to the Closing Date for which financial statements were not previously delivered, commencing with the month ended December 31, 2020), the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the end of such month and the related consolidated (and, with respect to statements of income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for such month and for the period from the beginning of the then current Fiscal Year to the end of such month, setting forth, in each case, in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a schedule of reconciliations for any reclassifications with respect to prior months or periods (and, in connection therewith, copies of any restated financial statements for any impacted month or period), a Financial Officer Certification and a Narrative Report with respect thereto, a Key Performance Indicator Report for such period and any other operating reports prepared by management for such period;
(b)    Quarterly Financial Statements. As soon as available, and in any event within 45 days after the end of each Fiscal Quarter of each Fiscal Year (including the fourth Fiscal Quarter and any Fiscal Quarter ending prior to the Closing Date for which financial statements were not previously delivered, commencing with the Fiscal Quarter ended February 28, 2021), the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated (and, with respect to statements of income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth, in each case, in comparative
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form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto;
(c)    Annual Financial Statements. As soon as available, and in any event within 120 days after the end of each Fiscal Year (including any Fiscal Year ending prior to the Closing Date for which financial statements were not previously delivered, commencing with the Fiscal Year ending on or about May 30, 2021), (i) the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Year and the related consolidated (and, with respect to statements of income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for such Fiscal Year, setting forth, in each case, in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, all in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) with respect to such consolidated and consolidating financial statements, a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by Holdings, and reasonably satisfactory to Administrative Agent (which report and accompanying financial statements shall be unqualified as to going concern and scope of audit, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards);
(d)    Compliance Certificate. Together with each delivery of financial statements of Holdings and its Subsidiaries pursuant to Sections 5.1(b) and Section 5.1(c), a duly executed and completed Compliance Certificate, which shall include a reporting of the status of the matters relating to compliance with the ongoing litigation and/or the Anti-Bribery and Anti-Corruption Laws disclosed in due diligence pursuant to Section 3.1(t) and/or otherwise disclosed pursuant to Sections 4.11, 4.24 or 4.26, as the case may be, in each case to the fullest extent possible; provided, however, no Credit Party shall be required to waive the attorney-client privilege or work product protections (in each case, to the extent not created in contemplation of such Credit Party’s obligations hereunder); provided, that no supplemental information provided through such reporting shall amend, supplement or otherwise modify any disclosure schedule or representation hereunder, or be deemed a waiver of any Default or Event of Default resulting from the matters disclosed therein, except as consented to by Administrative Agent and Requisite Lenders in writing;
(e)    Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Holdings and its Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such Sections
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had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to Administrative Agent;
(f)    Notice of Default; Material Adverse Effect. Promptly and in any event within three days after any officer of any Credit Party obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Holdings or any of its Subsidiaries with respect thereto; (ii) any notices of default under the ABL Credit Documents or any notice of any Enforcement Action (as defined in the Intercreditor Agreement); (iii) that any Person has given any notice to Holdings or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b); or (iv) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of an Authorized Officer specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Default, Event of Default, default, event or condition, and what action the Credit Parties have taken, are taking and propose to take with respect thereto;
(g)    Notice of Adverse Proceedings; Food Safety Matters.
(i)    Promptly and in any event within five days after any officer of any Credit Party obtaining knowledge of (A) the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed in writing by Credit Party Representative to Administrative Agent and the Lenders, or (B) any development in any Adverse Proceeding that in the case of either clause (A) or (B) if adversely determined, could be reasonably expected to (I) result in a Material Adverse Effect or liability of Holdings, any of its Subsidiaries or any of their respective Affiliates in excess of $250,000, individually or $500,000 in the aggregate for all such Adverse Proceedings or (II) result in any criminal, civil, administrative, or injunctive penalties or relief imposed against any of Holdings, its Subsidiaries and their respective Affiliates or any of their respective Directors, officers or employees, or (III) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to any Credit Party to enable Lenders and their counsel to evaluate such matters;