8-K
false000086629100008662912023-10-312023-10-31

 

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): October 31, 2023

 

 

Allegro MicroSystems, Inc.

(Exact name of Registrant as Specified in Its Charter)

 

 

Delaware

001-39675

46-2405937

(State or Other Jurisdiction
of Incorporation)

(Commission File Number)

(IRS Employer
Identification No.)

 

 

 

 

 

955 Perimeter Road

 

Manchester, New Hampshire

 

03103

(Address of Principal Executive Offices)

 

(Zip Code)

 

Registrant’s Telephone Number, Including Area Code: (603) 626-2300

 

 

(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 communications 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 class

 

Trading
Symbol(s)

 


Name of each exchange on which registered

Common Stock, par value $0.01 per share

 

ALGM

 

The 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 October 31, 2023, Allegro MicroSystems, Inc. (the “Company”) entered into an amendment (the “Amendment”) to the credit agreement, dated as of June 21, 2023, by and among the Company, Morgan Stanley Senior Funding, Inc., as administrative agent (in such capacity, the “Agent”) and collateral agent, and each lender from time to time party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement, as amended by the Amendment, the “Amended Credit Agreement”).

 

The Amendment provides for a new term loan facility (the “Amendment No. 1 Term Facility”, and the loans extended thereunder, the “Amendment No. 1 Term Loans”) under the Amended Credit Agreement in the aggregate principal amount of $250,000,000. The Amendment No. 1 Term Loans will amortize at a rate of 1.00% per annum. The Amendment No. 1 Term Loans will bear interest, at the Company's option, at a rate equal to (i) Term SOFR (as defined in the Amended Credit Agreement) in effect from time to time plus 2.75% or (ii) the highest of (x) the Federal funds rate, as published by the Federal Reserve Bank of New York, plus 0.50%, (y) the prime lending rate or (z) the one-month Term SOFR plus 1.0% in effect from time to time, plus 1.75%. The Amendment No. 1 Term Facility will mature on October 31, 2030.

 

The loans and other obligations under the Amendment No. 1 Term Facility are secured by substantially all of the Company’s personal property, including a pledge of all the capital stock of subsidiaries held directly by the Company or any subsidiary that guarantees the Amendment No. 1 Term Facility (which pledge, in the case of any foreign subsidiary, is limited to 65% of the voting stock), subject to certain customary exceptions and limitations. The Amendment generally prohibits any other liens on the assets of the Company and its Restricted Subsidiaries (as defined in the Amended Credit Agreement), subject to certain exceptions.

 

The proceeds of the Amendment No. 1 Term Loans were used (i) to finance the previously announced merger of Silicon Structures LLC with and into Crocus Technology International Corp (the “Target” or “Crocus”), (ii) to refinance (a) all outstanding term loans under the Term Loan Credit Agreement, dated as of September 30, 2020, by and among the Company, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, and the other agents, arrangers and lenders from time to time party thereto (the “Existing Term Facility”) and (b) certain indebtedness of the Target and its subsidiaries, and (iii) for general corporate purposes.

 

The Amended Credit Agreement contains certain covenants applicable to the Company and its Restricted Subsidiaries, including, without limitation, limitations on additional indebtedness, liens, various fundamental changes, dividends and distributions, investments (including acquisitions), transactions with affiliates, asset sales, prepayment of junior financing, changes in business and other limitations customary in senior secured credit facilities.

 

The Amended Credit Agreement provides for customary events of default. Upon an event of default, the Agent with the consent of, or at the request of, the holders of more than 50% in principal amount of the loans and commitments, may terminate the commitments and accelerate the maturity of the loans and enforce certain other remedies under the Amended Credit Agreement and the other loan documents.

 

In the ordinary course of their respective businesses, one or more of the lenders party to the Amendment, or their affiliates, have or may have various relationships with the Company and the Company’s subsidiaries involving the provision of a variety of financial services, including cash management, commercial banking, investment banking, advisory or other financial services, for which they received, or will receive, customary fees and expenses. In addition, the Company and the Company’s subsidiaries may have entered into or may in the future enter into in certain engagements with one or more of such lenders or their affiliates relating to specific endeavors.

 

The above description of the Amended Credit Agreement, as modified by the Amendment, does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein.

Item 1.02 Termination of a Material Definitive Agreement.

Substantially simultaneously with its entry into the Amendment No. 1 Term Facility described in Item 1.01 above, the Company repaid all outstanding loans and terminated all commitments and obligations under its Existing Term Facility.

Item 2.01 Completion of Acquisition or Disposition of Assets.

On October 31, 2023, the Company completed its previously announced transaction with Crocus pursuant to the Agreement and Plan of Merger, dated August 7, 2023 (the “Merger Agreement”), by and among the Company (for purposes of Section 5.15 and applicable provisions of Article IX of the Merger Agreement only), Allegro MicroSystems, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Parent”), Silicon Structures LLC, a Delaware limited liability company and wholly owned subsidiary of Merger Parent, the Target and NanoDimension Management Limited, as the representative of the Target’s shareholders. The Merger Agreement is more fully described in Item 1.01 of the Company’s Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission on August 8, 2023, which 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 above under Item 1.01 is hereby incorporated by reference into this Item 2.03.

Item 7.01 Regulation FD Disclosure.

On October 31, 2023, the Company issued a press release announcing the completion of the transaction with the Target. A copy of the press release is furnished with this Current Report on Form 8-K as Exhibit 99.1.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.

Description

Exhibit 10.1

 

Amendment No. 1, dated as of October 31, 2023, to the Credit Agreement, dated as of June 21, 2023, by and among Allegro MicroSystems, Inc., as borrower, Morgan Stanley Senior Funding, Inc., as administrative agent and collateral agent, and each lender from time to time party thereto*

Exhibit 99.1

Press Release issued by Allegro MicroSystems, Inc. on October 31, 2023

Exhibit 104

Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).

*Schedules and exhibits to the Amended Credit Agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish copies of any such schedules and exhibits to the Securities and Exchange Commission upon request.

 


SIGNATURES

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.

ALLEGRO MICROSYSTEMS, INC.

Date: October 31, 2023

By:

  /s/ Derek P. D'Antilio

 Derek P. D'Antilio

 Senior Vice President, Chief Financial Officer and Treasurer

 


EX-10.1

Exhibit 10.1

AMENDMENT NO. 1 (this “Amendment”), dated as of October 31, 2023, to the Credit Agreement, dated as of June 21, 2023 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”), among Allegro MicroSystems, Inc., as Borrower (the “Borrower”), Morgan Stanley Senior Funding, Inc. (“MSSF”), as Administrative Agent and Collateral Agent, and each Lender from time to time party thereto.

WHEREAS, in accordance with the provisions of Section 2.16 and Section 10.01(c)(vii) of the Existing Credit Agreement, the Borrower has requested that each Amendment No. 1 Term Lender with an Amendment No. 1 Term Loan Commitment provide Incremental Term Loans (“the “Amendment No. 1 Term Loans”) under and as defined in the Existing Credit Agreement in an aggregate principal amount set forth opposite such Amendment No. 1 Term Lender’s name on Schedule I hereto (the “Amendment No. 1 Term Loan Commitment”, and each lender under the Amended Credit Agreement (as hereinafter defined) that holds an Amendment No. 1 Term Loan, an “Amendment No. 1 Term Lender”) in an aggregate principal amount of $250,000,000, the proceeds of which will be used to (a) to finance that certain Permitted Acquisition (the “Acquisition”), of Crocus Technology International Corp. (the “Target”), pursuant to that certain Agreement and Plan of Merger, dated as of August 7, 2023 (together with all exhibits and schedules thereto, as amended, restated, amended and restated, supplemented or otherwise modified, collectively, the “Acquisition Agreement”), by and among, inter alios, the Borrower, certain Subsidiaries of the Borrower, the Target and other Persons party thereto, (b) to refinance (x) the Term Loan Credit Agreement (as defined in the Existing Credit Agreement) and (y) certain indebtedness of the Target and its subsidiaries (sub-clauses (x) and (y), collectively, the “Amendment No. 1 Refinancing”), (c) to pay fees, costs and expenses in connection with the Amendment No. 1 Term Loans, the consummation of the Acquisition and the Amendment No. 1 Refinancing and (d) for general corporate purposes, including transactions that are not prohibited by the terms of the Loan Documents;

WHEREAS, in connection with the foregoing, the Administrative Agent, the Borrower, the Amendment No. 1 Term Lenders and the other existing Lenders party hereto (who constitute the Required Lenders) desire to memorialize the terms of this Amendment by amending the Existing Credit Agreement in accordance with Section 2.16 and Section 10.01(c)(vii)(A) thereof, such amendments to become effective immediately on the Amendment No. 1 Effective Date (as hereinafter defined); and

WHEREAS, MSSF, BofA Securities, Inc., UBS Securities LLC, JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Sumitomo Mitsui Banking Corporation and Wells Fargo Securities, LLC have been appointed as the joint lead arrangers and joint bookrunners for the Amendment No. 1 Term Loan Commitment and the Amendment No. 1 Term Loans (the “Amendment No. 1 Lead Arrangers”).

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Amended Credit Agreement.

 


SECTION 2. Amendment No. 1 Term Loans.

(a)
Subject to the terms and conditions set forth herein, each of the Amendment No. 1 Term Lenders severally, but not jointly, agrees to make Amendment No. 1 Term Loans to the Borrower on the Amendment No. 1 Effective Date in the aggregate principal amount equal to such Amendment No. 1 Term Lender’s Amendment No. 1 Term Loan Commitment.
(b)
Upon the occurrence of the Amendment No. 1 Effective Date, each Amendment No. 1 Term Lender shall have the rights and obligations of a Lender under the Amended Credit Agreement and under any other applicable Loan Documents.
(c)
The Borrower and each other Loan Party acknowledges and agrees that (i) the Amendment No. 1 Term Loans shall constitute Obligations and have all the benefits thereof and the Borrower shall be liable for all Obligations with respect to all Amendment No. 1 Term Loans made to the Borrower pursuant to this Amendment and (ii) all such Obligations shall constitute Secured Obligations and shall be secured by the Liens granted to the Collateral Agent for the benefit of the Secured Parties and entitled to the benefits of the Collateral Documents and the Guaranty.
(d)
The Amendment No. 1 Term Loans shall be designated as a new Class of Loans under the Amended Credit Agreement, with terms and provisions set forth herein and in the Amended Credit Agreement.

SECTION 3. Amendments. In accordance with Section 2.16 and Section 10.01 of the Existing Credit Agreement and effective as of the Amendment No. 1 Effective Date (immediately upon the making of the Amendment No. 1 Term Loans on the Amendment No. 1 Effective Date), the Existing Credit Agreement is hereby amended to (a) delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the conformed copy of the Amended Credit Agreement attached as Annex A hereto, (b) replace each of Exhibit A-1, Exhibit A-2, Exhibit C, Exhibit D, Exhibit I and Exhibit K thereto, respectively, in its entirety with Annex B, Annex C, Annex D, Annex E, Annex F and Annex G hereof, respectively, and (c) add as new Exhibits B-2 and D-2 the forms set forth on Annex H and I hereof, respectively (the Existing Credit Agreement as so amended, the “Amended Credit Agreement”).

SECTION 4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Borrower and each other Loan Party each represents and warrants solely to the other parties hereto on the Amendment No. 1 Effective Date that:

(a)
the execution and delivery of this Amendment by such Loan Party and performance by such Loan Party of this Amendment (and the Amended Credit Agreement) is within such Loan Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational action of each such Loan Party;
(b)
this Amendment has been duly executed and delivered by such Loan Party; and
(c)
this Amendment (and the Amended Credit Agreement) constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and principles of good faith and fair dealing.

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SECTION 5. Amendment No. 1 Effective Date. This Amendment shall become effective as of the first date (the “Amendment No. 1 Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent and the Amendment No. 1 Term Lenders) (it being understood and agreed that the Amendment No. 1 Effective Date is October 31, 2023):

(a)
the Administrative Agent shall have received:
(i)
a counterpart signature page of this Amendment duly executed by the Borrower and each other Loan Party, the Administrative Agent, each Amendment No. 1 Term Lender and the other existing Lenders party hereto (who constitute the Required Lenders);
(ii)
a certificate signed by a Responsible Officer of each Loan Party, in substantially the form delivered on the Closing Date, (i) certifying that the articles of formation (or equivalent document) of such Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the prior date of delivery or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the Amendment No. 1 Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates (to the extent such concept exists in the relevant jurisdiction) with respect to such Loan Parties, certified as of a recent date by the appropriate Governmental Authority of the state of formation;
(iii)
a Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower, in accordance with and pursuant to the requirements of Section 2.01(b) of the Amended Credit Agreement; provided, that such Committed Loan Notice shall not be required to include any representation or statement as to (x) the absence (or existence) of any Default or Event of Default as of the Amendment No. 1 Effective Date or (y) the accuracy of any representation or warranty or the absence (or existence) of any “Company Material Adverse Effect” (as defined in the Acquisition Agreement);
(iv)
a certificate from the chief financial officer or other office with equivalent duties of the Borrower as to the Solvency (after giving effect to the transactions on the Amendment No. 1 Effective Date) of the Borrower substantially in the form attached as Exhibit H to the Existing Credit Agreement;
(v)
a certificate of a Responsible Officer of the Borrower certifying the satisfaction of the conditions set forth in Section 5(b) and (e);
(vi)
a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity as special New York counsel for the Borrower and the Subsidiary Guarantors and (ii) Morris, Nichols, Arsht & Tunnell LLP in its capacity as special Delaware counsel for the Borrower and the Subsidiary Guarantors;

3


(b)
each of the representations and warranties of each Loan Party set forth in Sections 5.01(a) (with respect to organizational existing only), 5.01(b)(ii), 5.02(a) and (b)(i), 5.04, 5.13, 5.16, 5.17 and 5.18 of the Existing Credit Agreement shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c)
the Administrative Agent shall have received at least three Business Days prior to the Amendment No. 1 Effective Date, (i) all outstanding documentation and other information about the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification, that in each case of clause (i) and/or (ii) has been requested in writing at least ten Business Days prior to the Amendment No. 1 Effective Date;
(d)
all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section 10.04 of the Existing Credit Agreement and pursuant to Section 7 hereof) or the Amendment No. 1 Lead Arrangers pursuant to any engagement letter or fee letter with the Borrower on or before the Amendment No. 1 Effective Date shall have been (or shall substantially contemporaneously be) paid in full in cash (to the extent invoiced at least three Business Days prior to the Amendment No. 1 Effective Date);
(e)
no Specified Event of Default under the Amended Credit Agreement shall exist immediately prior to or after giving effect to the effectiveness of this Amendment;
(f)
the Acquisition shall have been consummated in all material respects in accordance with the terms of the Acquisition Agreement substantially concurrently with the funding of the Amendment No. 1 Term Loans; and
(g)
the Amendment No. 1 Refinancing shall be consummated substantially concurrently with the funding of the Amendment No. 1 Term Loans.

For purposes of determining compliance with the conditions specified in this Section 5, the Administrative Agent, each Amendment No. 1 Term Lender and the other existing Lenders party hereto that have signed this Agreement or funded Amendment No. 1 Term Loans hereunder shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 5 to be consented to or approved by or acceptable or satisfactory to an Amendment No. 1 Term Lender and a Lender. Notwithstanding any other provision herein, the Administrative Agent, the Amendment No. 1 Lenders and the existing Lenders party hereto acknowledge and agree that the Amendment No. 1 Effective Date is October 31, 2023.

SECTION 6. Effect of Amendment.

(a)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or Agents under the Existing Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other provision of the Existing Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document in similar or different circumstances.

4


(b)
From and after the Amendment No. 1 Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any other Loan Document, shall be deemed a reference to the Amended Credit Agreement, and (ii) each reference in any Loan Document to “Commitments”, “Incremental Term Loans”, “Incremental Loans”, “Loans”, “Lender”, “Term Loan” and “Term Loan Lender” and “Term Loan Commitments” shall be deemed to include the Amendment No. 1 Term Loans, Amendment No. 1 Term Loan Lenders, and Amendment No. 1 Term Loan Commitments, as applicable.
(c)
This Amendment shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents and shall be deemed to be an “Incremental Amendment”.
(d)
Each party hereto acknowledges that this Amendment constitutes all notices or requests required under Section 2.16 and/or Section 10.01 of the Existing Credit Agreement, as applicable.
(e)
This Amendment shall not constitute a novation of the Existing Credit Agreement or any other Loan Document or of any indebtedness or other obligations thereunder.

SECTION 7. Expenses. The Borrower agrees to reimburse the Administrative Agent and each Amendment No. 1 Lead Arranger for its reasonable and documented out-of-pocket expenses incurred by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Latham & Watkins LLP, counsel for the Administrative Agent.

SECTION 8. Amendments. Once effective, this Amendment may not be amended nor may any provision hereof be waived except pursuant to Section 10.01 of the Amended Credit Agreement.

SECTION 9. Ratification and Reaffirmation. Each Loan Party hereby ratifies and reaffirms: (a) its Obligations in respect of the Existing Credit Agreement and each of the other Loan Documents to which it is a party and all of the covenants, duties, indebtedness and liabilities under the Existing Credit Agreement and the other Loan Documents to which it is a party, (b) its prior grant and the validity of the Liens granted by it pursuant to the Collateral Documents, with all such Liens continuing in full force and effect after giving effect to this Amendment and (c) the Liens and security interests created in favor of the Administrative Agent for the benefit of the Secured Parties (including the Amendment No. 1 Term Lenders) pursuant to each Collateral Document; which Liens shall continue to secure the Secured Obligations (as increased hereby), in each case, on and subject to the terms and conditions set forth in the Amended Credit Agreement and the other Loan Documents.

SECTION 10. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction; Service of Process. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 10.15, 10.16 and 10.20 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.

SECTION 11. Headings. Section headings herein are included for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

SECTION 12. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart signature of a page of this Amendment by telecopy or other electronic imaging (including in .pdf or .tif format) shall be

5


effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.

SECTION 13. Severability. If any provision of this Amendment (and/or the Amended Credit Agreement) is held to be illegal, invalid or unenforceable in any jurisdiction, (a) the legality, validity and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, of this Amendment (and the Amended Credit Agreement) shall not be affected or impaired thereby, and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 14. Amendment No. 1 Lead Arrangers. The Borrower hereby acknowledges and agrees that (a) the Amendment No. 1 Lead Arrangers shall be entitled to the privileges, indemnification, immunities and other benefits afforded to the Administrative Agent and the Arrangers pursuant to Article IX and Section 10.05 of the Amended Credit Agreement and (b) except as otherwise agreed to in writing by the Borrower and the Amendment No. 1 Lead Arrangers, no Amendment No. 1 Lead Arranger shall have any duties, responsibilities or liabilities with respect to this Amendment, the Amendment No. 1 Term Loan Commitment, the Amendment No. 1 Term Loans, the Amended Credit Agreement or any other Loan Document.

[Remainder of page intentionally left blank]

 

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

 

ALLEGRO MICROSYSTEMS, INC., as Borrower

 

 

 

 

 

 

By:

/s/ Derek D’Antilio

 

Name:

Derek D’Antilio

 

Title:

Senior Vice President, Chief

 

Financial Officer and Treasurer

 

 

 


 

 

Subsidiary Guarantor:

 

 

 

 

 

 

Allegro Microsystems, LLC

 

 

 

 

 

 

By:

/s/ Derek D’Antilio

 

Name:

Derek D’Antilio

 

Title:

Senior Vice President, Chief

 

Financial Officer and Treasurer

 

[Signature Page to Amendment No. 1]


 

 

MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent

 

 

 

 

 

 

By:

/s/ Brian Sanderson

 

Name:

Brian Sanderson

 

Title:

Authorized Signatory

 

[Signature Page to Amendment No. 1]


 

 

MORGAN STANLEY BANK, N.A.,

as an Amendment No. 1 Term Lender

 

 

 

 

 

 

By:

/s/ Brian Sanderson

 

Name:

Brian Sanderson

 

Title:

Authorized Signatory

 

[Signature Page to Amendment No. 1]


 

 

MORGAN STANLEY SENIOR FUNDING, INC., as a Lender

 

 

 

 

 

 

By:

/s/ Fru Ngwa

 

Name:

Fru Ngwa

 

Title:

Vice President

 

[Signature Page to Amendment No. 1]


 

 

BANK OF AMERICA, N.A.,

as a Lender

 

 

 

 

 

 

By:

/s/ James Haack

 

Name:

James Haack

 

Title:

Director

 

[Signature Page to Amendment No. 1]


 

 

CREDIT SUISSE AG, NEW YORK BRANCH, as a Lender

 

 

 

 

 

 

By:

/s/ Mikhail Faybusovich

 

Name:

Mikhail Faybusovich

 

Title:

Authorized Sigantory

 

 

 

 

 

 

By:

/s/ Heesu Sin

 

Name:

Heesu Sin

 

Title:

Authorized Sigantory

 

[Signature Page to Amendment No. 1]


 

 

JPMORGAN CHASE BANK, N.A.,

as a Lender

 

 

 

 

 

 

By:

/s/ Timothy D. Lee

 

Name:

Timothy D. Lee

 

Title:

Executive Director

 

[Signature Page to Amendment No. 1]


 

 

MIZUHO BANK, LTD.,

as a Lender

 

 

 

 

 

 

By:

/s/ Shohei Yamazaki

 

Name:

Shohei Yamazaki

 

Title:

Managing Director

 

[Signature Page to Amendment No. 1]


 

 

SUMITOMO MITSUI BANKING CORPORATION, as a Lender

 

 

 

 

 

 

By:

/s/ Hiroshi Mizumoto

 

Name:

Hiroshi Mizumoto

 

Title:

Managing Director

 

[Signature Page to Amendment No. 1]


 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender

 

 

 

 

 

 

By:

/s/ Denis Waltrich

 

Name:

Denis Waltrich

 

Title:

Director

 

[Signature Page to Amendment No. 1]


 

SCHEDULE I

AMENDMENT NO. 1 TERM LOAN COMMITMENTS

Amendment No. 1 Term Lender

Amendment No. 1 Term Loan Commitment

Morgan Stanley Bank, N.A.

$250,000,000.00

Total

$250,000,000.00

 

 

 

 


 

ANNEX A

AMENDMENTS TO CREDIT AGREEMENT

[Attached.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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CREDIT AGREEMENT

dated as of June 21, 2023

as amended by Amendment No. 1, dated as of October 31, 2023

by and among

Allegro MicroSystems, Inc.,

as Borrower

 

Morgan Stanley Senior Funding, Inc.,
as Administrative Agent,

Morgan Stanley Senior Funding, Inc.,
as Collateral Agent

and

THE LENDERS PARTY HERETO
________________

Morgan Stanley Senior Funding, Inc.,

BofA Securities, Inc.,

Credit Suisse Loan FundingUBS Securities LLC,
JPMorgan Chase Bank, N.A.,

Mizuho Bank, Ltd.,

Sumitomo Mitsui Banking Corporation and

Wells Fargo Securities, LLC,

as Lead Arrangers

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TABLE OF CONTENTS

 

 

Page

Article I.

Definitions and Accounting Terms

Section 1.01

Defined Terms

1

Section 1.02

Other Interpretive Provisions

6781

Section 1.03

Accounting and Finance Terms; Accounting Periods; Unrestricted Subsidiaries; Determination of Fair Market Value

6882

Section 1.04

Rounding

6982

Section 1.05

References to Agreements, Laws, Etc.

6982

Section 1.06

Times of Day

6983

Section 1.07

Available Amount Transactions

6983

Section 1.08

Pro Forma Calculations; Limited Condition Acquisitions; Basket and Ratio Compliance

6983

Section 1.09

Currency Equivalents Generally

7286

Article II.

The Commitments and Borrowings

Section 2.01

[Reserved]Term Loans

7387

Section 2.02

Revolving Loans

7388

Section 2.03

[Reserved]

7489

Section 2.04

Letters of Credit

7489

Section 2.05

Conversion/Continuation

8297

Section 2.06

Availability

8398

Section 2.07

Prepayments

8399

Section 2.08

Termination or Reduction of Commitments

84105

Section 2.09

Repayment of Loans

85105

Section 2.10

Interest

85106

Section 2.11

Fees

86107

Section 2.12

Computation of Interest and Fees

87109

Section 2.13

Evidence of Indebtedness

87109

Section 2.14

Method of Payment

88109

Section 2.15

Sharing of Payments, Etc.

89111

Section 2.16

Incremental Borrowings

90112

Section 2.17

Refinancing Amendments

93116

Section 2.18

Extensions of Loans

93117

Section 2.19

Defaulting Lenders

95119

Section 2.20

Judgment Currency

98122

Article III.

Taxes, Increased Costs Protection and Illegality

Section 3.01

Taxes

99122

Section 3.02

Illegality

103127

Section 3.03

Inability to Determine Rates

104127

Section 3.04

Increased Cost and Reduced Return; Capital Adequacy; Reserves on SOFR Loans.

104128

 


 

Section 3.05

Funding Losses

105129

Section 3.06

Matters Applicable to All Requests for Compensation

106130

Section 3.07

Replacement of Lenders Under Certain Circumstances

107130

Section 3.08

Survival

108132

Article IV.

Conditions Precedent to Borrowings

Section 4.01

Conditions to Initial Borrowing

108132

Section 4.02

Conditions to All Borrowings After the Closing Date

110134

Article V.

Representations and Warranties

Section 5.01

Existence, Qualification and Power; Compliance with Laws

110135

Section 5.02

Authorization; No Contravention

111135

Section 5.03

Governmental Authorization

111136

Section 5.04

Binding Effect

112136

Section 5.05

Financial Statements; No Material Adverse Effect

112136

Section 5.06

Litigation

112137

Section 5.07

Labor Matters

112137

Section 5.08

Ownership of Property; Liens

113137

Section 5.09

Environmental Matters

113137

Section 5.10

Taxes

113137

Section 5.11

ERISA Compliance

113138

Section 5.12

Subsidiaries

114138

Section 5.13

Margin Regulations; Investment Company Act

114139

Section 5.14

Disclosure

114139

Section 5.15

Intellectual Property; Licenses, Etc.

114140

Section 5.16

Solvency

115140

Section 5.17

USA PATRIOT Act, FCPA and OFAC

115140

Section 5.18

Collateral Documents

115140

Section 5.19

Use of Proceeds

115141

Article VI.

Affirmative Covenants

Section 6.01

Financial Statements

115141

Section 6.02

Certificates; Other Information

117142

Section 6.03

Notices

118144

Section 6.04

Payment of Certain Taxes

119144

Section 6.05

Preservation of Existence, Etc.

119145

Section 6.06

Maintenance of Properties

119145

Section 6.07

Maintenance of Insurance

119145

Section 6.08

Compliance with Laws

120146

Section 6.09

Books and Records

120146

Section 6.10

Inspection Rights

121146

Section 6.11

Covenant to Guarantee Obligations and Give Security

121147

Section 6.12

Further Assurances

124150

Section 6.13

Designation of Subsidiaries

125151

Section 6.14

[Reserved] Maintenance of Ratings

125152

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Section 6.15

Use of Proceeds

126152

Section 6.16

Post-Closing Matters

126152

Article VII.

Negative Covenants

Section 7.01

Liens

126152

Section 7.02

Investments

131157

Section 7.03

Indebtedness

134161

Section 7.04

Fundamental Changes

139167

Section 7.05

Dispositions

141169

Section 7.06

Restricted Payments

143172

Section 7.07

Transactions with Affiliates

146175

Section 7.08

Negative Pledge

148177

Section 7.09

Junior Debt Prepayments; Amendments to Junior Financing Documents

150179

Section 7.10

Financial Covenant

151181

Section 7.11

Change in Nature of Business

153182

Section 7.12

Sanctions..

153182

Article VIII.

Events of Default and Remedies

Section 8.01

Events of Default

153182

Section 8.02

Remedies upon Event of Default

155185

Section 8.03

Application of Funds

157187

Article IX.

Administrative Agent and Other Agents

Section 9.01

Appointment and Authority of the Administrative Agent

158188

Section 9.02

Rights as a Lender

159189

Section 9.03

Exculpatory Provisions

159176

Section 9.04

Reliance by the Agents

160178

Section 9.05

Delegation of Duties

161178

Section 9.06

Non-Reliance on Agents and Other Lenders; Disclosure of Information by Agents

161179

Section 9.07

Indemnification of Agents

162180

Section 9.08

No Other Duties; Other Agents, Lead Arrangers, Managers, Etc.

163180

Section 9.09

Resignation of Administrative Agent or Collateral Agent

163181

Section 9.10

Administrative Agent May File Proofs of Claim; Credit Bidding

164182

Section 9.11

Collateral and Guaranty Matters; Exercise of Remedies

166183

Section 9.12

Appointment of Supplemental Administrative Agents

169187

Section 9.13

Intercreditor Agreements

170187

Section 9.14

Cash Management Agreements and Secured Hedge Agreements

171188

Section 9.15

Withholding Taxes

171188

Section 9.16

Certain ERISA Matters

171189

Section 9.17

Return of Certain Payments.

172190

Article X.

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Miscellaneous

Section 10.01

Amendments, Waivers, Net Short Lenders Etc.

174192

Section 10.02

Notices and Other Communications; Facsimile Copies

181201

Section 10.03

No Waiver; Cumulative Remedies

183203

Section 10.04

Attorney Costs and Expenses

183203

Section 10.05

Indemnification by the Borrower

184204

Section 10.06

Marshaling; Payments Set Aside

186206

Section 10.07

Successors and Assigns

186206

Section 10.08

Confidentiality

192214

Section 10.09

Set-off

193216

Section 10.10

Interest Rate Limitation

194217

Section 10.11

Counterparts; Integration; Effectiveness

194217

Section 10.12

Electronic Execution of Assignments and Certain Other Documents

195218

Section 10.13

Survival

195218

Section 10.14

Severability

195218

Section 10.15

GOVERNING LAW

196218

Section 10.16

WAIVER OF RIGHT TO TRIAL BY JURY

197219

Section 10.17

Limitation of Liability

197220

Section 10.18

Use of Name, Logo, Etc.

198220

Section 10.19

USA PATRIOT Act Notice

198220

Section 10.20

Service of Process

198221

Section 10.21

No Advisory or Fiduciary Responsibility

198221

Section 10.22

Binding Effect

199221

Section 10.23

Obligations Several; Independent Nature of Lender’s Rights

199221

Section 10.24

Headings

199222

Section 10.25

Acknowledgement and Consent to Bail-In of Affected Financial Institutions

199222

Section 10.26

Acknowledgment Regarding Any Supported QFCs

200222

Section 10.27

Disqualified Lenders

200223

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SCHEDULES

1.01

Commitments

5.06

Litigation

5.07

Labor Matters

5.11(a)

ERISA Compliance

5.11(b)

ERISA Compliance

5.12

Subsidiaries

6.16

Post-Closing Matters

7.01

Existing Liens

7.03

Existing Indebtedness

10.02

Administrative Agent’s Office, Certain Addresses for Notices

 

EXHIBITS

Form of

A-1

Committed Loan Notice

A-2

Conversion/Continuation Notice

A-3

Issuance Notice

B-1

Revolving Loan Note

B-2

Term Loan Note

C

Compliance Certificate

D-1

Assignment and Assumption

D-2

Affiliated Lender Assignment and Assumption

E

Guaranty

F

Security Agreement

G-1

Non-Bank Certificate (For Foreign Lenders That Are Not Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

G-2

Non-Bank Certificate (For Foreign Lenders That Are Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

G-3

Non-Bank Certificate (For Foreign Participants That Are Not Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

G-4

Non-Bank Certificate (For Foreign Participants That Are Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

H

Solvency Certificate

I

Prepayment Notice

J-1

Junior Lien Intercreditor Agreement

J-2

Equal Priority Intercreditor Agreement

K

[Reserved]Auction Procedures

L

Global Intercompany Note

 

 


 

CREDIT AGREEMENT

This CREDIT AGREEMENT is entered into as of June 21, 2023 by and among Allegro MicroSystems, Inc., a Delaware corporation (the “Borrower”), Morgan Stanley Senior Funding, Inc., as administrative agent under the Loan Documents (in such capacity, including any successor thereto, the “Administrative Agent”), Morgan Stanley Senior Funding, Inc., as collateral agent under the Loan Documents (in such capacity, including any successor thereto, the “Collateral Agent”), and each lender from time to time party hereto (collectively, the “Lenders” and, individually, a “Lender”). Capitalized terms used herein are defined as set forth in Section 1.01.

PRELIMINARY STATEMENTS

The Borrower has requested that upon satisfaction (or waiver) of the conditions precedent set forth in Article IV, the Lenders extend credit to the Borrower in the form of $224,000,000 of Revolving Commitments and from time to time, the Revolving Lenders make Revolving Loans and the Issuing Banks issue Letters of Credit, pursuant to the terms of this Agreement.

The proceeds of the Revolving Loans will be used to for working capital purposes and general corporate purposes not prohibited by this Agreement.

The Borrower, the Administrative Agent, the Amendment No. 1 Term Lenders (as hereinafter defined) and the other Lenders party thereto entered into Amendment No. 1 (as hereinafter defined), under which the Amendment No. 1 Term Lenders extended credit to the Borrower in the form of Amendment No. 1 Term Loans (as hereinafter defined) in an original aggregate principal amount equal to $250,000,000.

Pursuant to Amendment No. 1, the Administrative Agent, the Borrower, the Amendment No. 1 Term Lenders and the other Lenders party thereto agreed to certain amendments as provided in Amendment No. 1.

The applicable Lenders have indicated their willingness to make Loans and each Issuing Bank has indicated its willingness to issue Letters of Credit, in each case, on the terms and subject only to the conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

Article I.

Definitions and Accounting Terms
Section 1.01
Defined Terms. As used in this Agreement, the following terms have the meanings set forth below:

Accounting Change” means any change in GAAP, any change in the application of GAAP or the adoption of another internationally recognized accounting standard, including the adoption of IFRS.

Acquisition” means the transactions contemplated by the Acquisition Agreement.

Acquisition Agreement” means that certain Agreement and Plan of Merger, dated as of August 7, 2023, by and among, inter alios, the Borrower, certain Subsidiaries of the Borrower, Crocus Technology International Corp. and the other Persons party thereto.

 


 

Acquisition Transaction” means the purchase or other acquisition (in one transaction or a series of transactions, including by merger or otherwise) by the Borrower or any Restricted Subsidiary of all or substantially all the property, assets or business of another Person, or assets constituting a business unit, line of business or division of, any Person, or of a majority of the outstanding Equity Interests of any Person (including any Investment which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in any Joint Venture or other Person to an amount in excess (or further in excess) of the majority of the outstanding Equity Interests of such Joint Venture or other Person).

Additional Lender” means, at any time, any bank, other financial institution or institutional investor that, in any case, is not an existing Lender and that agrees to provide any portion of any,

(a)
Incremental Loan in accordance with Section 2.16 (including, for the avoidance of doubt, the Amendment No. 1 Term Lenders); or
(b)
Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.17;

provided that each Additional Lender (other than any Person that is an Affiliate of a Lender or an Approved Fund of a Lender at such time) shall be subject to the approval of the Administrative Agent and the Issuing Banks (such approval not to be unreasonably withheld, conditioned or delayed), in each case to the extent any such consent would be required from the Administrative Agent under Section 10.07(b)(iii)(B), and the Issuing Banks under Section 10.07(b)(iii)(D), respectively, for an assignment of Loans to such Additional Lender.

Administrative Agent” has the meaning specified in the introductory paragraph to this Agreement.

Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any U.K. Financial Institution.

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlled” has the meaning correlative thereto. For the avoidance of doubt, none of the Lead Arrangers, the Agents, or their respective lending affiliates shall be deemed to be an Affiliate of the Loan Parties or any of the Restricted Subsidiaries.

Affiliated Debt Fund” means,

(a)
any Affiliate of a Sponsor that is a bona fide bank, debt fund, distressed asset fund, hedge fund, mutual fund, insurance company, financial institution or an investment vehicle that is

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engaged in the business of investing in, acquiring or trading commercial loans, Debt Securities and similar extensions of credit in the ordinary course of business, in each case, that is not organized primarily for the purpose of making equity investments; and
(b)
any investment fund or account of a Permitted Investor managed by third parties (including by way of a managed account, a fund or an index fund in which a Permitted Investor has invested) that is not organized or used primarily for the purpose of making equity investments,

in each case, with respect to which the applicable Sponsor or Permitted Investor does not directly or indirectly possess the power to direct or cause the direction of the investment policies of such entity.

Affiliated Lender” means any Non-Affiliated Debt Fund, the Borrower and/or any of its Restricted Subsidiaries.

Affiliated Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with the consent of any party whose consent is required by ‎Section 10.07) and accepted by the Administrative Agent in the form of Exhibit D-2 or any other form approved by the Administrative Agent and the Borrower.

Affiliated Lender Term Loan Cap” has the meaning assigned to such term in Section 10.07(h)(iii).

Agent Parties” has the meaning specified in Section 10.02(e).

Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, shareholders, employees, agents, attorney-in-fact, partners, trustees, advisors and other representatives of such Persons and of such Persons’ Affiliates.

Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Supplemental Administrative Agents (if any), and the Lead Arrangers.

Aggregate Commitments” means the Commitments of all the Lenders.

Agreement” means this Credit Agreement, as amended, restated, amended and restated, modified or supplemented from time to time in accordance with the terms hereof.

Agreement Currency” has the meaning specified in Section 2.20(b).

All-In Yield” means, as to any Indebtedness or Loans of any Class, the then “effective yield” on such facility calculated by the Administrative Agent in consultation with the Borrower in a manner consistent with generally accepted financial practice; provided that (a) OID and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness), (b) ”All-In Yield” shall not include any arrangement fees, structuring fees, underwriting fees, commitment fees, amendment fees, ticking fees, escrow arrangement fees or any other fees similar to the foregoing (regardless of how such fees are computed or to whom paid), interest payable in kind or prepayment (or repayment) premiums applicable to such Indebtedness, (c) any amendments to the applicable margin on the Term Loans that became effective subsequent to the Amendment No. 1 Effective Date but prior to the time of (or concurrently with) the addition of such facility shall be included, and

3


 

(d) if such facility includes any interest rate floor greater than that which is applicable to the Term Loans and such floor is applicable to the Term Loans on the date of determination, the difference between the amount of such floors shall be equated to interest margin for determining the applicable interest rate.

Amendment No. 1” means that certain Amendment No. 1, dated as of October 31, 2023, among the Borrower, the other Loan Parties party thereto, the Administrative Agent, the Amendment No. 1 Term Lenders party thereto and the other Lenders party thereto.

Amendment No. 1 Effective Date” has the meaning assigned to such term in Amendment No. 1.

Amendment No. 1 Refinancing” has the meaning assigned to such term in Amendment No. 1.

Amendment No. 1 Term Lender” has the meaning assigned to such term in Amendment No. 1.

Amendment No. 1 Term Loan Commitment” has the meaning assigned to such term in Amendment No. 1.

Amendment No. 1 Term Loan Maturity Date” means the date that is seven years after the Amendment No. 1 Effective Date.

Amendment No. 1 Term Loans” has the meaning assigned to such term in Amendment No. 1.

Amendment No. 1 Transactions” means, collectively, the entering into of Amendment No. 1, the incurrence of the Amendment No. 1 Term Loans, the consummation of the Acquisition, the Refinancing and the payment of the Transaction Expenses related thereto.

Annual Financial Statements” means the audited consolidated balance sheet of March 25, 2023, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows for the fiscal year then ended.

Applicable Commitment Fee” means a percentage per annum that shall be equal to,

(a)
from the Closing Date until the third Business Day after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(a) calculating the Total Net Leverage Ratio in respect of the first full fiscal quarter ending after the Closing Date, 0.25% per annum, and
(b)
thereafter, the applicable rate per annum set forth below under the caption “Applicable Commitment Fee” based upon the Total Net Leverage Ratio as of the last day of the most recent Test Period as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

Total Net Leverage Ratio

Applicable Commitment Fee

Greater than 1.00:1.00

0.25%

Less than or equal to 1.00:1.00

0.20%

 

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No change in the Applicable Commitment Fee shall be effective until three Business Days after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(a) calculating the Total Net Leverage Ratio. At any time the Borrower has not submitted to the Administrative Agent the applicable information as and when required under Section 6.02(a), the Applicable Commitment Fee shall be determined as if the Total Net Leverage Ratio were in excess of 1.00 to 1.00. Within three Business Days of receipt of the applicable information under Section 6.02(a), the Administrative Agent shall give each Revolving Lender written notice of the Applicable Commitment Fee in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 6.02(a) is determined to be inaccurate (at a time prior to the satisfaction of the Termination Conditions), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Commitment Fee for any period (an “Applicable Commitment Fee Period”) than the Applicable Commitment Fee applied for such Applicable Commitment Fee Period, then (a) the Borrower shall promptly (and in any event within five Business Days) following such determination deliver to the Administrative Agent correct financial statements and certificate required by Section 6.02(a) for such Applicable Commitment Fee Period, (b) the Applicable Commitment Fee for such Applicable Commitment Fee Period shall be determined as if the Total Net Leverage Ratio were determined based on the amounts set forth in such correct financial statements and certificates and (c) the Borrower shall promptly (and in any event within ten Business Days) following delivery of such corrected financial statements and certificate pay to the Administrative Agent the accrued additional amounts owing as a result of such increased Applicable Commitment Fee for such Applicable Commitment Fee Period. Notwithstanding anything to the contrary set forth herein, the provisions of this final paragraph (but not any of the other provisions of this definition preceding this final paragraph) may be amended or waived as provided in Section 10.01(b)(ii).

Applicable Commitment Fee Period” has the meaning specified in the definition of “Applicable Commitment Fee.”

Applicable Creditor” has the meaning specified in Section 2.20(b).

Applicable Decimal Place” has the meaning specified in Section 1.04.

Applicable Indebtedness” has the meaning specified in the definition of “Weighted Average Life to Maturity.

Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.

“Applicable Rate” means:

(a)
with respect to Revolving Loans, a percentage per annum equal to (i) for SOFR Loans, 1.75% and (ii) for Base Rate Loans, 0.75%; provided that from and after the third Business Day after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(a) calculating the Total Net Leverage Ratio in respect of the first full fiscal quarter ending after the Closing Date, the “Applicable Rate” for Revolving Loans shall be the applicable rate per annum set forth below under the caption “Benchmark Rate Spread” or “Base Rate Spread,”

5


 

respectively, based upon the Total Net Leverage Ratio as of the last day of the most recent Test Period as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

Total Net Leverage Ratio

Benchmark Rate Spread

Base Rate Spread

Above 1.00 to 1.00

1.75%

0.75%

Equal to or below 1.00 to 1.00

1.50%

0.50%

 

No change in the Applicable Rate set forth above resulting from a change in the Total Net Leverage Ratio shall be effective until three Business Days after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(a) calculating the Total Net Leverage Ratio. At any time the Borrower has not submitted to the Administrative Agent the applicable information as and when required under Section 6.02(a), the Applicable Rate for Revolving Loans shall be determined as if the Total Net Leverage Ratio were in excess of 1.00 to 1.00. Within three Business Days of receipt of the applicable information under Section 6.02(a), the Administrative Agent shall give each Revolving Lender written notice of the Applicable Rate in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 6.02(a) is determined to be inaccurate (at a time prior to the satisfaction of the Termination Conditions), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period than the Applicable Rate applied for such period, then (a) the Borrower shall promptly (and in any event within five Business Days) following such determination deliver to the Administrative Agent correct financial statements and certificate required by Section 6.02(a) for such period, (b) the Applicable Rate for such period shall be determined as if the Total Net Leverage Ratio were determined based on the amounts set forth in such correct financial statements and certificates and (c) the Borrower shall promptly (and in any event within ten Business Days) following delivery of such corrected financial statements and Compliance Certificate pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Rate for such period. Notwithstanding anything to the contrary set forth herein, the provisions of this final paragraph (but not any of the other provisions of this clause of this preceding this final paragraph) may be amended or waived as provided in Section 10.01(b)(ii); and

(b)
with respect to Amendment No. 1 Term Loans, a percentage per annum equal to (i) for SOFR Loans, 2.75% and (ii) for Base Rate Loans, 1.75%; and
(c)
(b) with respect any Loans (other than the Revolving Loans and the Amendment No. 1 Term Loans), as specified in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment.

Appropriate Lender” means, at any time, with respect to Loans of any Class, the Lenders of such Class.

Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

6


 

Asset Sale Prepayment Percentage” means, as of the date of the receipt of the Net Cash Proceeds from a Disposition of any property or assets constituting Collateral pursuant to the General Asset Sale Basket or from a Casualty Event respect to property or assets constituting Collateral or at any time during the applicable reinvestment period, (a) if the Total Net Leverage Ratio is greater than 1.50:1.00, 100%, (b) if the Total Net Leverage Ratio is less than or equal to 1.50:1.00 and greater than 1.00:1.00, 50% and (c) if the Total Net Leverage Ratio is less than or equal to 1.00:1.00, 0%.

Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D-1 or any other form approved by the Administrative Agent.

Attorney Costs” means all reasonable and documented in reasonable detail fees, expenses, charges and disbursements of any law firm or other external legal counsel.

Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Available Amount” means, as of any date of determination (such date, the “Reference Date”), with respect to the applicable Available Amount Reference Period, a cumulative amount equal to the sum of, without duplication:

(a)
an amount equal to the greater of (i) $95,000,000 and (ii) 30.00% of LTM Consolidated Adjusted EBITDA as of the applicable date of determination; plus
(b)
an amount equal to 50% of cumulative Consolidated Net Income for such Available Amount Reference Period; provided that when measuring such amount (i) Consolidated Net Income will be deemed not to be less than zero in any period and (ii) Consolidated Net Income for any fiscal quarter will be deemed to be zero until the financial statements required to be delivered pursuant to Section 6.01(b) for such fiscal quarter, and the related Compliance Certificate required to be delivered pursuant to Section 6.02(a) for such fiscal quarter, have been received by the Administrative Agent; plus
(c)
the aggregate amount of all Permitted Equity Issuances, during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date and, in each case, to the extent Not Otherwise Applied; plus
(d)
to the extent not reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment pursuant to Section 7.02, the aggregate amount of all cash dividends and other cash distributions received by the Borrower or any Restricted Subsidiary from any Minority Investments or Unrestricted Subsidiaries during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date in respect of Investments in such Unrestricted Subsidiary or Minority Investments made by the Borrower or any Restricted Subsidiary made in reliance on the Available Amount in an amount not to exceed the amount of such Investment when made; plus
(e)
to the extent not reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment pursuant to Section 7.02, the aggregate amount of all Investments of the Borrower and its Restricted Subsidiaries in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has

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been merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries (up to the lesser of (i) the fair market value of such Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation and (ii) the fair market value of such Investments by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time they were made), to the extent that the original Investments in such Unrestricted Subsidiary were made in reliance of the Available Amount; plus
(f)
to the extent not reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment pursuant to Section 7.02 or required to be applied to prepay Term Loans in accordance with Section 2.07(b) of the Term Loan Credit Agreement (or any other substantially similar provision in the definitive documents governing any Permitted Refinancing of the Term Loan Credit Agreement(ii), the aggregate amount of all Net Cash Proceeds received by the Borrower or any Restricted Subsidiary in connection with the Disposition of its ownership interest in any Minority Investment or Unrestricted Subsidiary during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date, in each case, to the extent that the original Investments in such Unrestricted Subsidiary or Minority Investments were made in reliance on the Available Amount in an amount not to exceed the amount of such Investment when made; plus
(g)
to the extent (i) not reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment pursuant to Section 7.02 and (ii) not in excess of the fair market value of such Investment at the time it was made, the returns (including repayments of principal and payments of interest), profits, distributions and similar amounts received in cash or Cash Equivalents by the Borrower and its Restricted Subsidiaries on Investments made by the Borrower or any Restricted Subsidiary in reliance on the Available Amount; plus
(h)
(i) any amount of mandatory prepayments of Term Loans required to be prepaid pursuant to Section 2.07(b) that have been declined by Lenders in accordance with Section 2.07(b)(vii) and (ii) any amount of mandatory prepayments of Pari Passu Lien Debt of the Borrower (and any Permitted Refinancing of the foregoing), to the extent such amount was required to be applied to offer to repurchase or otherwise prepay such Indebtedness and the holders of such Pari Passu Lien Debt declined such repurchase or prepayment; plus
(i)
any amount of Net Cash Proceeds from Dispositions or Casualty Events not required to be applied to a mandatory prepayment or investment pursuant to the Term Loan Credit Agreement or Permitted Refinancing thereofSection 2.07(b)(ii) (other than any amount of Net Cash Proceeds not applied to make a prepayment or investment pursuant to Section 2.07(b)(ii) by virtue of the application of Section 2.07(b)(vi) of the Term Loan Credit Agreement) (or any other substantially similar provision in the definitive documents governing any Permitted Refinancing of the Term Loan Credit Agreement); minus
(j)
the aggregate amount of any Investments made pursuant to Section 7.02(hh)(i), any Restricted Payments made pursuant to Section 7.06(s)(i) and any Junior Debt Repayment made pursuant to Section 7.09(a)(ix)(A) during the period commencing on the Closing Date and ending on the applicable date of determination (and, for purposes of this clause (j), without taking account of the intended usage of the Available Amount on such applicable date of determination in the contemplated transaction).

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Available Amount Reference Period” means, with respect to any applicable date of measurement of the Available Amount, the day after the Closing Date through and including such date of measurement.

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

Bail-In Legislation” 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 which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate in effect on such day plus 0.50%, (b) the Prime Rate in effect on such day, and (c) Term SOFR for an Interest Period of one month in effect on such day plus 1.00% (or, if such day is not a Business Day, the immediately preceding Business Day). Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or Term SOFR, respectively. For the avoidance of doubt, if Base Rate determined as provided above shall ever be less than (x) solely with respect to Amendment No. 1 Term Loans, 1.00%, such rate shall be deemed to be the 1.00% and (y) otherwise, 1.00%, such rate shall be deemed to be the 1.00%.

Base Rate Loan” means a Loan that bears interest based on the Base Rate.

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

Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then the “Benchmark” means the applicable Benchmark Replacement if such Benchmark Replacement has replaced the prior benchmark rate pursuant to Section 10.01(g).

Benchmark Available Tenor” means, as of any date of determination, with respect to the then-current Benchmark, as applicable,

(a)
if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement, or
(b)
otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement,

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in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 10.01(g).

Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

(a)
Daily Simple SOFR; or
(b)
the sum of (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities, and (ii) the related Benchmark Replacement Adjustment.

If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than (x) solely with respect to Amendment No. 1 Term Loans, 0.00%, the Benchmark Replacement will be deemed to be 0.00% and (y) otherwise, 0.00%, the Benchmark Replacement will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

Benchmark Replacement Date” means a date and time determined by the Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:

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

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

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

(a)
a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof), the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component), or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), stating or announcing that the administrator of such Benchmark (or such component) has ceased or will cease, to provide all Benchmark 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 Benchmark Available Tenor of such Benchmark (or such component thereof); or
(b)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Benchmark Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

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

Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 10.01(g) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 10.01(g).

Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) 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 Code) the assets of any such “employee benefit plan” or “plan.”

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BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Board of Directors” means, as to any Person, the board of directors, board of managers or other governing body of such Person (or if such Person is a limited liability company, partnership or similar entity that is managed by an equityholder or general partner, in each case that is a single entity, the board of directors, board of managers or other governing body of such single entity equityholder or general partner), and the term “directors” means members of the Board of Directors.

Borrower” means Allegro MicroSystems, Inc., a Delaware corporation.

Borrower Materials” has the meaning specified in Section 6.02.

Borrowing” means a borrowing consisting of Loans of the same Class and Type made, converted or continued on the same date and, in the case of a SOFR Borrowing, having the same Interest Period.

Business Day” means,

(a)
any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed;
(b)
solely if such day relates to any interest rate settings as to a SOFR Loan, any day other than a Saturday, a Sunday or a day that the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities (a “U.S. Government Securities Business Day”).

Capital Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capitalized Leases) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on the consolidated statement of cash flows of the Borrower and the Restricted Subsidiaries.

Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.

Capitalized Leases” means all capital leases that have been or are required to be, in accordance with GAAP recorded as capitalized leases; provided that all obligations of any Person that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions (including the definition of Indebtedness), calculations and deliverables under this Agreement or any other Loan Document (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU or otherwise (on a prospective or retroactive basis or otherwise) to be treated as or to be recharacterized as capital lease obligations or otherwise accounted for as liabilities in financial statements.

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Captive Insurance Subsidiary” means any Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).

Cash Collateral Account” means an account held at, and subject to the sole dominion and control of, the Collateral Agent.

Cash Collateralize” means, in respect of an Obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance satisfactory to the Administrative Agent or the applicable Issuing Bank, as applicable (and “Cash Collateralization” has a corresponding meaning). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Equivalents” means any of the following types of Investments (including for the avoidance of doubt, cash), to the extent owned by the Borrower or any Restricted Subsidiary:

(a)
Dollars, Euro, Sterling, Philippine Pesos, Thai Baht and such other currencies as may be agreed between the Borrower and the Administrative Agent from time to time;
(b)
local currencies held by the Borrower or any Restricted Subsidiary from time to time in the ordinary course of business and not for speculation;
(c)
readily marketable direct obligations issued or directly and fully and unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 12 months or less from the date of acquisition;
(d)
certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 (or the foreign currency equivalent thereof as of the date of such investment);
(e)
repurchase obligations for underlying securities of the types described in clauses (c) and (d) above or clause (h) below entered into with any financial institution meeting the qualifications specified in clause (d) above;
(f)
commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and in each case maturing within 12 months after the date of creation thereof;
(g)
marketable short-term money market and similar highly liquid funds having a rating of at least P-2 or A-2 from Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);

13


 

(h)
readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof, in each case having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of 12 months or less from the date of acquisition;
(i)
Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);
(j)
investment funds investing substantially all of their assets in securities of the types described in clauses (a) through (i) above; and
(k)
solely with respect to any Captive Insurance Subsidiary, any investment that a Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law.

In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a jurisdiction outside the United States of America, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (a) through (k) above in foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (k) above and in this paragraph. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (a) or (b) above; provided that such amounts, except amounts used to pay obligations of the Borrower or any Restricted Subsidiary denominated in any currency other than Dollars in the ordinary course of business, are converted into Dollars as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

Cash Management Bank” means any Person that is a Lender or Agent or an Affiliate of a Lender or Agent (a) on the Closing Date (with respect to any Cash Management Services entered into prior to the Closing Date), (b) at the time it initially provides any Cash Management Services to the Borrower or any Restricted Subsidiary, or (c) at the time that the Person to whom the Cash Management Services are provided is merged with the Borrower or becomes or is merged with a Restricted Subsidiary (with respect to any Cash Management Services entered into prior to the date of such merger or such Person becoming a Restricted Subsidiary), in each case whether or not such Person subsequently ceases to be a Lender or Agent or an Affiliate of a Lender or Agent.

Cash Management Obligations” means obligations owed by the Borrower or any Restricted Subsidiary to any Cash Management Bank in respect of or in connection with any Cash Management Services and designated by the Cash Management Bank and the Borrower in writing to the Administrative Agent as “Cash Management Obligations.”

Cash Management Services” means any agreement or arrangement to provide cash management services, including treasury, depository, overdraft, credit card processing, credit or debit card, purchase card, electronic funds transfer and other cash management arrangements.

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Casualty Event” means any event that gives rise to the receipt by a Loan Party of any property or casualty insurance proceeds or any condemnation awards, in each case, in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

Causes of Action” means any and all claims, actions, causes of action, choses in action, suits, debts, damages, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, judgments, remedies, rights of set-off, third party claims, subrogation claims, contribution claims, reimbursement claims, indemnity claims, counterclaims, cross-claims, whether known or unknown, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, whether direct, indirect, derivative, or otherwise, whether arising before, on, or after the Closing Date, in contract or in tort, in law (whether local, state, or federal U.S. or non-U.S. law) or in equity, or pursuant to any other theory of local, state, or federal U.S. or non-U.S. law. For the avoidance of doubt, “Cause of Action” includes: (a) any right of setoff, counterclaim, or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (b) any claim based on or relating to, or in any manner arising from, in whole or in part, tort, breach of contract, breach of fiduciary duty, fraudulent transfer or fraudulent conveyance or voidable transaction law, violation of local. state, or federal or non-U.S. law or breach of any duty imposed by law or in equity, including securities laws, negligence, and gross negligence; (c) any claim pursuant to section 362 or chapter 5 of the title 11 of the United States Code or similar local, state, or federal U.S. or non-U.S. law; (d) any claim or defense including fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of title 11 of the United States Code; (e) any state or foreign law pertaining to actual or constructive fraudulent transfer, fraudulent conveyance, or similar claim; and (f) any “lender liability” or equitable subordination claims or defenses.

Change in Law” means the occurrence, after the date of this Agreement, of any of the following:

(a)
the adoption or taking effect of any law, rule, regulation or treaty (excluding the taking effect after the date of this Agreement of a law, rule, regulation or treaty adopted prior to the date of this Agreement);
(b)
any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or
(c)
the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

It is understood and agreed that (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173), all Laws relating thereto, all interpretations and applications thereof and any compliance by a Lender with any and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof or relating thereto and (ii) all requests, rules, guidelines, requirements or directives issued by any United States or foreign regulatory authority in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) in each case pursuant to Basel III, shall, for the purposes of this Agreement, be deemed to be adopted subsequent to the date hereof and a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented.

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Change of Control” means the earliest to occur of:

(a)
any Person or Persons (in each case, other than Sanken) constituting a “group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person and its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becoming the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of Equity Interests representing more than thirty-five percent of the aggregate ordinary voting power represented by the then issued and outstanding Equity Interests of the Borrower;
(b)
a “change of control” (or similar defined term) for events substantially consistent with those described in clause (a) of this definition occurring under (i) the Term Loan Credit Agreement (or the definitive documents governing any Permitted Refinancing of the Term Loan Credit Agreement), (ii) the documentation in respect of any Credit Agreement Refinancing Indebtedness and/or (iiiii) any other Material Indebtedness; or
(c)
the consummation of any transaction or series of related transactions immediately following which no Equity Interests of the Borrower are listed on the NASDAQ or the New York Stock Exchange, or on any other United States stock exchange, or are not otherwise listed on a public exchange.

Class” when used in reference to,

(a)
any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are an issuance of Revolving Loans, Term Loans (including Amendment No. 1 Term Loans), Incremental Revolving Loans, Refinancing Revolving Loans, Extended Revolving Loans or, Incremental Term Loans Refinancing Term Loans or Extended Term Loans;
(b)
any Commitment, refers to whether such Commitment is (i) a Commitment in respect of Revolving Loans or, (ii) a Commitment in respect of Term Loans (including Amendment No. 1 Term Loans) or (iii) a Commitment in respect of a Class of Loans to be made pursuant to an Incremental Amendment, Refinancing Amendment or an Extension Amendment; and
(c)
any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments.

Refinancing Revolving Commitments, Refinancing Revolving Loans, and Extended Revolving Loans, Refinancing Term Commitments, Refinancing Term Loans, Incremental Term Loans and Extended Term Loans that have different terms and conditions shall be construed to be in different Classes.

Closing Date” means the first date on which all of the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

Closing Date EBITDA” means $325,000,000.

Closing Date Intercreditor Agreement” means that certain Equal Priority Intercreditor Agreement, dated as of September 30, 2020, by and among the Mizuho Bank, Ltd., the Term Loan Agent and each additional representative and collateral agent from time to time party thereto, and

16


 

as acknowledged by the Loan Parties, as the same may be amended, restated, amended and restated, waived or otherwise modified from time to time.

Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.

Collateral” means all the “Collateral” (or equivalent term) as defined in any Collateral Document, the Mortgaged Properties and all other property that is subject or purported to be subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to any Collateral Document, but in any event excluding all Excluded Assets.

Collateral Agent” has the meaning specified in the introductory paragraph to this Agreement.

Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreements, the Mortgages, Security Agreement Supplements, or other similar agreements delivered to the Agents and the Lenders pursuant to Sections 4.01(a), 6.11, 6.12 or 6.16, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

Commitments” means the Revolving Commitments and the Term Loan Commitments.

Committed Loan Notice” means a notice of a Borrowing pursuant to Article II, which, if in writing, shall be substantially in the form of Exhibit A-1.

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

Company Person” means any future, current or former officer, director, manager, member, member of management, employee, consultant or independent contractor of the Borrower or any Subsidiary.

Comparable Financing” means any Incremental Term Facility (or any Incremental Equivalent Debt, any Permitted Ratio Debt and/or any Indebtedness incurred pursuant to Section 7.03(y) in the form of term loans) that is both denominated in U.S. Dollars and secured by liens on Collateral that rank pari passu with the liens that secure the Amendment No. 1 Term Loans.

Compliance Certificate” means a certificate substantially in the form of Exhibit C.

Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 10.01(g) and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market

17


 

practice for the administration of any such rate 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 Loan Documents).

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidated Adjusted EBITDA” means, with respect to any Person for any Test Period, the Consolidated Net Income of such Person for such Test Period:

(a)
increased, without duplication, by the following items (solely to the extent deducted (and not excluded) in calculating Consolidated Net Income, other than in respect of the proviso in clause (i) below and clauses (ii)(B), (xi), (xix) and (xx) below) of such Person and its Restricted Subsidiaries for such Test Period determined on a consolidated basis in accordance with GAAP:
(i)
interest expense, including (A) imputed interest on Capitalized Lease Obligations and Attributable Indebtedness (which, in each case, will be deemed to accrue at the interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligations or Attributable Indebtedness), (B) commissions, discounts and other fees, charges and expenses owed with respect to letters of credit, bankers’ acceptance financing, surety and performance bonds and receivables financings, (C) amortization and write-offs of deferred financing fees, debt issuance costs, debt discounts, commissions, fees, premium and other expenses, as well as expensing of bridge, commitment or financing fees, (D) payments made in respect of hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, (E) cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than such Person or a wholly owned Restricted Subsidiary) in connection with Indebtedness incurred by such plan or trust, (F) all interest paid or payable with respect to discontinued operations, (G) the interest portion of any deferred payment obligations, and (H) all interest on any Indebtedness that is (x) Indebtedness of others secured by any Lien on property owned or acquired by such Person or its Restricted Subsidiaries, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property or (y) contingent obligations in respect of Indebtedness; or (z) fees and expenses paid to the Administrative Agent (in its capacity as such and for its own account) pursuant to the Loan Documents and fees and expenses paid to the administrative agent, the collateral agent, trustee or other similar Persons for the other Indebtedness incurred on the Closing Date pursuant to Section 7.03(b); provided that any such interest expense shall be calculated after giving effect to Hedge Agreements related to interest rates (including associated costs), but excluding unrealized gains and losses with respect to such Hedge Agreements; plus
(ii)
taxes based on gross receipts, income, profits or revenue or capital, franchise, excise, property, commercial activity, sales, use, unitary or similar taxes, and foreign withholding taxes, including (A) penalties and interest and (B) tax distributions made to any direct or indirect holders of Equity Interests of such Person in respect of any such taxes attributable to such Person and/or its Restricted Subsidiaries or pursuant to a tax sharing arrangement or as a result of a tax distribution or repatriated fund; plus

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(iii)
depreciation expense and amortization expense (including amortization and similar charges related to goodwill, customer relationships, trade names, databases, technology, software, internal labor costs, deferred financing fees or costs and other intangible assets); plus
(iv)
non-cash items (provided that if any such non-cash item represents an accrual or reserve for potential cash items in any future period, (1) the Borrower may determine not to add back such non-cash item in the current Test Period and (2) to the extent the Borrower decides to add back such non-cash expense or charge, the cash payment in respect thereof in such future period will be subtracted from Consolidated Adjusted EBITDA in such future period), including the following: (A) non-cash expenses in connection with, or resulting from, stock option plans, employee benefit plans or agreements or post-employment benefit plans or agreements, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other similar rights, (B) non-cash currency translation losses related to changes in currency exchange rates (including re-measurements of Indebtedness (including intercompany Indebtedness) and any net non-cash loss resulting from hedge agreements for currency exchange risk), (C) non-cash losses, expenses, charges or negative adjustments attributable to the movement in the mark-to-market valuation of hedge agreements or other derivative instruments, including the effect of FASB Accounting Standards Codification 815 and International Accounting Standard No. 9 and their respective related pronouncements and interpretations, (D) non-cash charges for deferred tax asset valuation allowances, (E) any non-cash impairment charge or asset write-off or write-down related to intangible assets (including goodwill), long-lived assets, and Investments in debt and equity securities, (F) any non-cash charges or losses resulting from any purchase accounting adjustment or any step-ups with respect to re-valuing assets and liabilities in connection with the Transactions or any Investments either existing or arising after the Closing Date, (G) all non-cash losses from Investments either existing or arising after the Closing Date recorded using the equity method, (H) the excess of GAAP rent expense over actual cash rent paid during such period due to the use of straight line rent for GAAP purposes and (I) any non-cash interest expense; plus
(v)
unusual, extraordinary, infrequent, or non-recurring items, whether or not classified as such under GAAP; plus
(vi)
charges, costs, losses, expenses or reserves related to: (A) restructuring (including restructuring charges or reserves, whether or not classified as such under GAAP), severance, relocation, consolidation, integration or other similar items, (B) strategic and/or business initiatives, business optimization (including costs and expenses relating to business optimization programs, which, for the avoidance of doubt, shall include, without limitation, implementation of operational and reporting systems and technology initiatives; strategic initiatives; retention; severance; systems establishment costs; systems conversion and integration costs; contract termination costs; recruiting and relocation costs and expenses; costs, expenses and charges incurred in connection with curtailments or modifications to pension and post-retirement employee benefits plans; costs to start-up, pre-opening, opening, closure, transition and/or consolidation of distribution centers, operations, officers and facilities) including in connection with the Transactions and any Permitted Investment, any acquisition or other investment consummated

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prior to the Closing Date and new systems design and implementation, as well as consulting fees and any one-time expense relating to enhanced accounting function, (C) business or facilities (including greenfield facilities) start-up, opening, transition, consolidation, shut-down and closing, (D) signing, retention and completion bonuses, (E) severance, relocation or recruiting, (F) charges and expenses incurred in connection with litigation (including threatened litigation), with any internal investigation or with any investigation or proceeding (or any threatened investigation or proceeding) by a regulatory, governmental or law enforcement body (including any attorney general), and (G) expenses incurred in connection with casualty events or asset sales outside the ordinary course of business; plus
(vii)
all (A) costs, fees and expenses relating to the Transactions, (B) costs, fees and expenses (including consulting, legal, diligence and integration costs) incurred in connection with (x) investments in any Person, acquisitions of the Equity Interests of any Person, acquisitions of all or a material portion of the assets of any Person or constituting a line of business of any Person, and financings related to any of the foregoing or to the capitalization of any Loan Party or any Restricted Subsidiary or (y) other transactions that are out of the ordinary course of business of such Person and its Restricted Subsidiaries (in each case of clause (x) and (y), including transactions considered or proposed but not consummated), including Permitted Equity Issuances, Investments, acquisitions, dispositions, recapitalizations, mergers, option buyouts and the incurrence, modification or repayment of Indebtedness (including all consent fees, premium and other amounts payable in connection therewith) and (C) non-operating professional fees, costs and expenses; plus
(viii)
items reducing Consolidated Net Income to the extent (A) covered by a binding indemnification or refunding obligation or insurance to the extent actually paid or reasonably expected to be paid, (B) paid or payable (directly or indirectly) by a third party that is not a Loan Party or a Restricted Subsidiary (except to the extent such payment gives rise to reimbursement obligations) or with the proceeds of a contribution to equity capital of such Person by a third party that is not a Loan Party or a Restricted Subsidiary or (C) such Person is, directly or indirectly, reimbursed for such item by a third party; plus
(ix)
the amount of management, monitoring, consulting, transaction and advisory fees (including termination fees) and related indemnities and expenses paid, payable or accrued in such Test Period (including any termination fees payable in connection with the early termination of management and monitoring agreements); plus
(x)
the effects of purchase accounting, fair value accounting or recapitalization accounting (including the effects of adjustments pushed down to such Person and its Subsidiaries) and the amortization, write-down or write-off of any such amount; plus
(xi)
proceeds of business interruption insurance actually received; plus
(xii)
minority interest expense, including consisting of income attributable to Equity Interests held by third parties in any non-wholly owned Restricted Subsidiary; plus

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(xiii)
all charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Equity Interests held by officers or employees and all losses, charges and expenses related to payments made to holders of options or other derivative Equity Interests of such Person or any direct or indirect parent thereof in connection with, or as a result of, any distribution being made to equity holders of such Person or any direct or indirect parent thereof, including (A) payments made to compensate such holders as though they were equity holders at the time of, and entitled to share in, such distribution, and (B) all dividend equivalent rights owed pursuant to any compensation or equity arrangement; plus
(xiv)
expenses, charges and losses resulting from the payment or accrual of indemnification or refunding provisions, earn-outs and contingent consideration obligations; bonuses and other compensation paid to employees, directors or consultants; and payments in respect of dissenting shares and purchase price adjustments; in each case, made in connection with a Permitted Investment or other acquisition; plus
(xv)
any losses from disposed or discontinued operations; plus
(xvi)
(A) any costs or expenses (including any payroll taxes) incurred by the Borrower or any Restricted Subsidiary in such Test Period as a result of, in connection with or pursuant to any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or agreement, any pension plan (including (1) any post-employment benefit scheme to which the relevant pension trustee has agreed, (2) as a result of curtailments or modifications to pension and post-retirement employee benefit plans and (3) without limitation, compensation arrangements with holders of unvested options entered into in connection with a permitted Restricted Payment), any stock subscription, stockholders or partnership agreement, any payments in the nature of compensation or expense reimbursement made to independent board members, any employee benefit trust, any employee benefit scheme or any similar equity plan or agreement (including any deferred compensation arrangement), including any payment made to option holders in connection with, or as a result of, any distribution being made to, or share repurchase from, a shareholder, which payments are being made to compensate option holders as though they were shareholders at the time of, and entitled to share in, such distribution or share repurchase and (B) any costs or expenses incurred in connection with the rollover, acceleration or payout of Equity Interests held by management of the Borrower and/or any Restricted Subsidiary; plus
(xvii)
the amount of loss or discount on sale of receivables, Securitization Assets and related assets to any Securitization Subsidiary in connection with a Qualified Securitization Financing; plus
(xviii)
the cumulative effect of a change in accounting principles; plus
(xix)
addbacks (including for subsequent Test Periods not set forth therein, if any) reflected in (A) the financial model for the Borrower and its Subsidiaries prepared by the Sponsors and delivered to the Lead Arrangers in connection with the Transactions (including, for the avoidance of doubt, non-core losses on sales of equipment and expenses related to the COVID-19 pandemic) or a quality of earnings report delivered to the Administrative Agent in connection with the Transactions

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or (B) any quality of earnings report prepared by KPMG, Deloitte, Ernst & Young, Pricewaterhouse Coopers (and their affiliates and successors) and furnished to the Administrative Agent, in connection with an Acquisition Transaction, Permitted Investment or other Investment consummated after the Closing Date; plus
(xx)
the amount of “run rate” cost savings, operating expense reductions and other cost synergies (“Run Rate Savings”) that are projected by the Borrower in good faith to result from actions taken, committed to be taken or expected to be taken no later than 24 months after the end of such Test Period (which amounts will be determined by the Borrower in good faith and calculated on a pro forma basis as though such amounts had been realized on the first day of the Test Period for which Consolidated Adjusted EBITDA is being determined), net of the amount of actual benefits realized during such Test Period from such actions; provided that, in the good faith judgment of the Borrower such cost savings, operating expense reductions and cost synergies are reasonably identifiable, reasonably anticipated to be realized and factually supportable (it being agreed such determinations need not be made in compliance with Regulation S-X or other applicable securities law); plus
(xxi)
to the extent not included in Consolidated Net Income for such period, cash actually received (or any netting arrangement resulting in reduced cash expenditures) during such period so long as the non-cash gain relating to the relevant cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA for any previous period and not added back; plus
(xxii)
the amount of costs, fees and expenses relating to compliance with the Sarbanes-Oxley Act of 2002, as amended, and other expenses arising out of or incidental to the Borrower’s status as a reporting company, including (A) registration and listing fees, (B) costs, fees and expenses (including legal, accounting and other professional fees) relating to compliance with provisions of the Securities Act and the Exchange Act and the rules of securities exchange companies, (C) directors’ compensation, fees and expense reimbursement, (D) shareholder meetings and reports to shareholders, (E) directors’ and officers’ insurance, and (F) other costs, fees and expenses (including legal, accounting and other professional fees) incidental to the foregoing; plus
(xxiii)
the amount of fees, expense reimbursements and indemnities paid to directors and/or members of advisory boards, including directors of the Borrower; plus
(xxiv)
any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization or such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature; plus
(xxv)
payments made pursuant to Earnouts and Unfunded Holdbacks; and
(b)
decreased, without duplication, by the following items of such Person and its Restricted Subsidiaries for such Test Period determined on a consolidated basis in accordance with GAAP (solely to the extent increasing Consolidated Net Income):

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(i)
any amount which, in the determination of Consolidated Net Income for such period, has been included for any non-cash income or non-cash gain, all as determined in accordance with GAAP (provided that if any non-cash income or non-cash gain represents an accrual or deferred income in respect of potential cash items in any future period, such Person may determine not to deduct the relevant non-cash gain or income in the then-current period); plus
(ii)
the amount of any cash payment made during such period in respect of any non-cash accrual, reserve or other non-cash charge that is accounted for in a prior period and that was added to Consolidated Net Income to determine Consolidated Adjusted EBITDA for such prior period and that does not otherwise reduce Consolidated Net Income for the current period, plus
(iii)
any unusual, extraordinary, infrequent or non-recurring gains; plus
(iv)
Any net income from disposed or discontinued operations; plus
(v)
any non-cash items increasing Consolidated Net Income, excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than such cash charges that have been added back to Consolidated Net Income in calculating Consolidated Adjusted EBITDA in accordance with this definition).

Notwithstanding the foregoing, (a) the aggregate amount of Run Rate Savings increasing Consolidated Adjusted EBITDA for any Test Period shall not exceed 25% of the Consolidated Adjusted EBITDA for such Test Period (measured after to giving effect to such items) and (b) the Consolidated Adjusted EBITDA for each of the four full fiscal quarters preceding the Closing Date shall be, in chronological order, $69,947,000, $80,246,000, $89,128,000, and $93,776,000, in each case, as such amounts may be adjusted pursuant to the foregoing provisions and other pro forma adjustments permitted by this Agreement (including as necessary to give Pro Forma Effect to any Specified Transaction).

Consolidated Current Assets” means, as of any date of determination, the total assets of the Borrower and the Restricted Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents, amounts related to current or deferred taxes based on income or profits, assets held for sale, loans (permitted) to third parties, pension assets, deferred bank fees and derivative financial instruments, and excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition.

Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of the Borrower and the Restricted Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding (a) the current portion of any Funded Debt, (b) the current portion of interest, (c) accruals for current or deferred taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves, (e) any revolving facility, (f) the current portion of any Capitalized Lease Obligation, (g) deferred revenue arising from cash receipts that are earmarked for specific projects, (h) liabilities in respect of unpaid earn-outs and (i) the current portion of any other long-term liabilities, and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transaction or any consummated acquisition.

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Consolidated First Lien Net Debt” means, as of any date of determination, (a) Consolidated Total Debt that (i) is not subordinated in right of payment to the Revolving Loans and (ii) is secured by a lien on the Collateral on an equal priority basis with the Revolving Loans (excluding (1) all Capitalized Lease Obligations and purchase money debt obligations not secured by a lien on the Collateral and (2) any “right of use” leases), minus (b) the aggregate amount of cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of such date that is not Restricted.

Consolidated Net Debt” means, as of any date of determination, (a) Consolidated Total Debt minus (b) the aggregate amount of cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of such date that is not Restricted.

Consolidated Net Income” means, with respect to any Person for any Test Period, the Net Income of such Person and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such consolidated net income (to the extent otherwise included therein), without duplication:

(a)
the Net Income for such Test Period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting; provided that the Borrower’s or any Restricted Subsidiary’s equity in the Net Income of such Person shall be included in the Consolidated Net Income of the Borrower for such Test Period up to the aggregate amount of dividends or distributions or other payments in respect of such equity that are actually paid in cash (or to the extent converted into cash) by such Person to the Borrower or a Restricted Subsidiary, in each case, in such Test Period, to the extent not already included therein (subject in the case of dividends, distributions or other payments in respect of such equity made to a Restricted Subsidiary to the limitations contained in clause (b) below);
(b)
solely with respect to the calculation of Available Amount and Excess Cash Flow, the Net Income of any Restricted Subsidiary of such Person during such Test Period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or requirement of Law applicable to such Restricted Subsidiary during such Test Period; provided that Consolidated Net Income of such Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to such Person or its Restricted Subsidiaries in respect of such Test Period;
(c)
any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized by such Person or any of its Restricted Subsidiaries during such Test Period upon any asset sale or other disposition of any Equity Interests of any Person (other than any dispositions in the ordinary course of business) by such Person or any of its Restricted Subsidiaries;
(d)
gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such Test Period;
(e)
earnings (or losses), including any impairment charge, resulting from any reappraisal, revaluation or write-up (or write-down) of assets during such Test Period;

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(f)
(i) unrealized gains and losses with respect to Hedge Agreements for such Test Period and the application of Accounting Standards Codification 815 (Derivatives and Hedging) and (ii) any after-tax effect of income (or losses) for such Test Period that result from the early extinguishment of (A) Indebtedness, (B) obligations under any Hedge Agreements or (C) other derivative instruments;
(g)
any extraordinary, non-recurring or unusual gain (or extraordinary, non-recurring or unusual loss), together with any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by such Person or any of its Restricted Subsidiaries during such Test Period;
(h)
the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such Test Period;
(i)
after-tax gains (or losses) on disposal of disposed, abandoned or discontinued operations for such Test Period;
(j)
effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the inventory, property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue, debt and unfavorable or favorable lease line items in such Person’s consolidated financial statements pursuant to GAAP for such Test Period resulting from the application of purchase accounting in relation to the Transactions or any acquisition consummated prior to the Closing Date and any Permitted Acquisition or other Investment or the amortization or write-off of any amounts thereof, net of taxes, for such Test Period;
(k)
any non-cash compensation charge or expense for such Test Period, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights and any cash charges or expenses associated with the rollover, acceleration or payout of Equity Interests by, or to, management of such Person or any of its Restricted Subsidiaries in connection with the Transactions;
(l)
(i) Transaction Expenses incurred during such Test Period and (ii) any fees and expenses incurred during such Test Period, or any amortization thereof for such Test Period, in connection with any acquisition (other than the Transactions), Investment, disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt or equity instrument (in each case, including any such transaction whether consummated on, after or prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring costs incurred during such Test Period as a result of any such transaction;
(m)
any expenses, charges or losses for such Test Period that are covered by indemnification or other reimbursement provisions in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); and

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(n)
to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses for such Test Period with respect to liability or casualty events or business interruption.

Consolidated Secured Net Debt” means, as of any date of determination, (a) Consolidated Total Debt that (i) is not subordinated in right of payment to the Revolving Loans and (ii) is secured by a lien on the Collateral (excluding any “right of use” leases), minus (b) the aggregate amount of cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of such date that is not Restricted.

Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of third party Indebtedness of the type described in (i) clauses (a), (b) (in respect of Indebtedness of the type described in clause (a)) and (d) (excluding accrued dividends to the extent not increasing liquidation preference) of the definition of “Indebtedness” of the Borrower and the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis and as reflected on the face of a balance sheet prepared in accordance with the Accounting Principles (but excluding the effects of the application of purchase accounting in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereunder), consisting of Indebtedness for borrowed money; provided, that Consolidated Total Debt will not include Indebtedness in respect of: (i) any Qualified Securitization Financing; (ii) undrawn letters of credit and bank guarantees; (iii) obligations under any Hedge Agreement; (iv) any “right of use” leases; and (v) other Capitalized Lease Obligations and purchase money debt obligations as reflected on the balance sheet to the extent less than $25,000,000.

Consolidated Working Capital” means, as of any date of determination, the excess of Consolidated Current Assets over Consolidated Current Liabilities.

Contract Consideration has the meaning specified in the definition of Excess Cash Flow.

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Contribution Indebtedness” means Indebtedness in an aggregate principal amount at the time of the incurrence thereof not to exceed an amount equal to 100.00% of the amount of any Permitted Equity Issuances (excluding any Specified Equity Contribution) during the period from and including the Business Day immediately following the Closing Date through and including the reference date that are Not Otherwise Applied.

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.

Conversion/Continuation Notice” means a notice of (a) a conversion of Loans from one Type to another or (b) a continuation of SOFR Loans, pursuant to Article II, which, if in writing, shall be substantially in the form of Exhibit A-2.

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Covered Entity” means any of the following:

(a)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R § 47.3(b); or
(c)
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 specified in Section 10.26(b).

Credit Agreement Refinancing Indebtedness” means Indebtedness of the Borrower or any Restricted Subsidiary in the form of term loans or notes or revolving commitments; provided that:

(a)
such Indebtedness is incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, or refinance, in whole or part, Indebtedness that is either Revolving Commitments, Term Loans or other Credit Agreement Refinancing Indebtedness (together, “Refinanced Debt”);
(b)
the aggregate committedprincipal amount of such Indebtedness on any date such Indebtedness is incurred (or commitments with respect thereto are made) shall not exceed the aggregate principal (and/or principal committed amount, as applicable) amount of the Refinanced Debt being exchanged, extended, renewed, replaced or refinanced (plus (i) the amount of all unpaid, accrued, or capitalized interest, penalties, premiums (including tender premiums) and other amounts payable with respect to the Refinanced Debt and (ii) underwriting discounts, fees, commissions, costs, expenses and other amounts payable with respect to such Credit Agreement Refinancing Indebtedness);
(c)
(i) the scheduled final maturity date of such Indebtedness constituting a revolving facility will be no earlier than, and such Indebtedness shall not have scheduled or mandatory commitment reductions prior to, the scheduled final maturity date of the Refinanced Debt, (ii) the scheduled final maturity date of such Indebtedness (other than a revolving facility) will be no earlier than the scheduled final maturity date of the Refinanced Debt and (iii) the Weighted Average Life to Maturity of any such Indebtedness (other than a revolving facility) will be no shorter than the remaining Weighted Average Life to Maturity of the Refinanced Debt; provided that this clause (c) shall not apply to the incurrence of any such Indebtedness pursuant to the Inside Maturity Exception;
(d)
any mandatory prepayment of such Indebtedness (other a revolving facility) may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Indebtedness) in any mandatory repayments required to be made on the Refinanced Debt pursuant to its terms, it being agreed (A) any repayment of such Indebtedness at maturity shall be permitted and (B) any greater than pro rata repayment of such Indebtedness shall be permitted with the proceeds of a permitted refinancing thereof; provided that this clause (d) shall not apply to the incurrence of any such Indebtedness Debt pursuant to the Inside Maturity Exception;

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(e)
(d) (i) to the extent secured by a Lien on property or assets of the Borrower or any of its Restricted Subsidiaries, any such Indebtedness shall not be secured by any Lien on any property or asset of such Person that does not also secure the Revolving Loans and the Amendment No. 1 Term Loans (except (1) customary cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender, (2) Liens on property or assets applicable only to periods after the Latest Maturity Date at the time of incurrence, and (3) any Liens on property or assets to the extent that a Lien on such property or asset is also added for the benefit of the Lenders under the Revolving Commitments and the Amendment No. 1 Term Loans for so long as such Liens secure such Indebtedness); and (ii) to the extent incurred by or guaranteed by the Borrower or any of its Restricted Subsidiaries, any such Indebtedness shall not be incurred by or guaranteed by any such Person that is not (or is not required to be) a Loan Party (except (1) for guarantees by other Persons that are applicable only to periods after the Latest Maturity Date at the time of incurrence, and (2) any such Person guaranteeing such Indebtedness that also guarantees the Revolving Loans and the Amendment No. 1 Term Loans for so long as such Person guarantees such Indebtedness); and
(f)
(e) the terms and conditions applicable to any such Credit Agreement Refinancing Indebtedness are either: (i) substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Revolving Facilityapplicable Refinanced Debt, as determined in good faith by a Responsible Officer of the Borrower in its reasonable judgment (except (A) for terms and conditions applicable only to periods after the scheduled final maturity date of the Revolving Facilitysuch Refinanced Debt at the time of incurrence and (B) any term or condition to the extent such term or condition is also added for the benefit of the Lenders under the Revolving Facilitysuch Refinanced Debt); or (ii) consistent with customary market terms and conditions at the time of such incurrence, including with respect to high yield debt securities to the extent applicable, as determined in good faith by a Responsible Officer of the Borrower in its reasonable judgment; provided that, (1) in the case of both clause (i) and (ii) a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of any such Credit Agreement Refinancing Indebtedness (or receipt of commitments with respect thereto), together with a reasonably detailed description of the material terms and conditions of such Credit Agreement Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (ef) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Borrower in writing within such five Business Days (or shorter) period that it disagrees with such determination (including a detailed description of the basis upon which it disagrees); and (2) this clause (ef) will not apply to (1I) terms addressed in the preceding clauses of this definition, (2II) interest rate, rate floors, fees, funding discounts and other pricing or economic terms, and (3III) optional prepayment or redemption terms.

Credit Agreement Refinancing Indebtedness (i) may rank either pari passu or junior in right of payment and/or security with any Class of Revolving Loans or Term Loans (including the Amendment No. 1 Term Loans) and (ii) for the avoidance of doubt, may be Pari Passu Lien Debt, Junior Lien Debt or unsecured Indebtedness. Credit Agreement Refinancing Indebtedness will be deemed to include any Registered Equivalent Notes issued in exchange therefor

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Credit Extension” means each of (i) the making of a Revolving Loan or (ii) the issuance, amendment, modification, renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase the Stated Amount of the relevant Letter of Credit).

CrivaSense” means CrivaSense Technologies SAS, a société par actions simplifiée organized under the laws of the Federal Republic of France, which as of the Closing Date is a joint venture between Allegro Microsystems Europe Ltd. and certain joint venture partners and in which the Borrower owns, indirectly, a majority of the Equity Interests of such Person.

CrivaSense JV Documents” means, collectively, (a) the articles of association of CrivaSense, (b) that certain Shareholders Agreement by and among certain of the owners of the Equity Interests in CrivaSense, (c) that certain Collaboration Agreement between Allegro MicroSystems Europe Ltd. and certain other investors in CrivaSense and/or their affiliates, (d) that certain General Collateral Agreement between CrivaSense, Allegro Microsystems, LLC and the other parties thereto and (e) any other document between or among the investors in CrivaSense with respect to the ownership or operations of CrivaSense, in each case as in effect from time to time.

Cure Expiration Date” has the meaning specified in Section 7.10(b).

Cure Security” has the meaning specified in Section 7.10(b).

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.

Debt Representative” means, with respect to any series of Indebtedness secured by a Lien that is subject to an Intercreditor Agreement, or is subordinated in right of payment to all or any part of the Obligations, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

Debt Securities” means any indebtedness evidenced by bonds, notes, debentures or similar instruments, but excluding all statutory obligations, surety, stay, customs and appeal bonds, performance bonds, completion guarantees and other obligations of a like nature.

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2.00% per annum; provided that with respect to the

29


 

outstanding principal amount of any Loan not paid when due, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan (giving effect to Section 2.05(c)) plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.

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 2.19(b), any Lender that,

(a)
has failed to (i) fund all or any portion of its Loans, including participations in respect of Letters of Credit, within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Banks or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due;
(b)
has notified the Borrower, the Administrative Agent, the Issuing Banks or any Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied);
(c)
has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower; or
(d)
the Administrative Agent or the Borrower has received notification that such Lender is, or has a direct or indirect parent entity that is, (i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, (ii) other than via an Undisclosed Administration, the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other Federal or state regulatory authority acting in such a capacity or the like has been appointed for such Lender or its direct or indirect parent entity, or such Lender or its direct or indirect parent entity has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent entity thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

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Any determination by the Administrative Agent or the Borrower that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19) upon delivery of written notice of such determination to the Borrower, the Administrative Agent, the Issuing Banks and each Lender.

Deliverable Obligation” means each obligation of the Loan Parties that would constitute a “Deliverable Obligation” under a market standard credit default swap transaction documented under the ISDA CDS Definitions and specifying any of the Loan Parties as a Reference Entity. Each capitalized term used but defined in the preceding sentence has the meaning specified in the ISDA CDS Definitions, as applicable.

Designated Jurisdiction” means any country, region or territory to the extent that such country, region or territory is the subject of any Sanctions.

Designated Non-Cash Consideration” means the fair market value of any non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to the General Asset Sale Basket that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within one hundred eighty days following the consummation of the applicable Disposition).

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (excluding Liens and any sale of Equity Interests in, or issuance of Equity Interests by, a Restricted Subsidiary) of any property by any Person.

Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition,

(a)
matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale, as long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event is subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and Cash Collateralization of all Letters of Credit);
(b)
is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part;
(c)
provides for the scheduled payments of dividends all or a portion of which is required to be made only in cash; or
(d)
is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests;

in each case, prior to the Latest Maturity Date of the Loans at the time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of one or more Company Persons or by any such plan to one or more Company Persons, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by

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the Borrower or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of a Company Person’s termination, death or disability.

Disqualified Lender” means,

(a)
the competitors of the Borrower and its Subsidiaries identified in writing by or on behalf of the Borrower (i) to the Lead Arrangers on or prior to the Closing Date, or (ii) to the Administrative Agent, from time to time on or after the Closing Date;
(b)
those particular banks, financial institutions, other institutional lenders and other Persons to the extent identified in writing by or on behalf of the Borrower (x) to the Lead Arrangers on or prior to the Closing Date or (y) with respect to the Amendment No. 1 Term Loans, to the Administrative Agent on or prior to September 19, 2023; and
(c)
any Affiliate of a Person described in the preceding clauses (a) or (b) that (in each case, other than any Affiliates that are banks, financial institutions, bona fide debt funds or investment vehicles that are engaged in making, purchasing, holding or otherwise investing in commercial loans, Debt Securities and similar extensions of credit in the ordinary course (except to the extent separately identified under clause (a) or (b) above)), in each case, is either readily identifiable as such on the basis of its name or is identified as such in writing by or on behalf of the Borrower (i) to the Lead Arrangers on or prior to the Closing Date, or (ii) to the Administrative Agent from time to time on or after the Closing Date;

provided, that any additions made to the list of Disqualified Lenders after the Closing Date shall not be effective until at least three Business Days after such addition.

The Borrower shall, upon request of any Lender, identify whether any Person identified by such Lender as a proposed assignee or Participant is a Disqualified Lender. The identification of any person as a Disqualified Lender shall not apply to retroactively disqualify any Person that was a Lender or a participant prior to the effectiveness of the addition of such person as a Disqualified Lender. The list of Disqualified Lenders shall be made available to all Lenders (including Public Lenders and Private Lenders) by posting such list to IntraLinks or another similar electronic system.

Division” has the meaning specified in Section 1.02(d).

Dollar” and “$” mean lawful money of the United States.

Dollar Amount” means, at any time:

(a)
with respect to any Loan denominated in Dollars, the principal amount thereof then outstanding (or in which such participation is held);
(b)
with respect to any Letter of Credit Obligation (or risk participation therein), denominated in Dollars the amount thereof; and
(c)
with respect to any other amount (i) if denominated in Dollars, the amount thereof, or (ii) if denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the Issuing Bank, as applicable, on the basis of the Exchange Rate (determined in respect of the most recent relevant date of determination) for the purchase of Dollars with such currency.

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Domestic Subsidiary” means any direct or indirect Subsidiary of the Borrower that is organized under the Laws of the United States, any state thereof or the District of Columbia.

Earnouts” means (a) all earnout payments or other contingent payments in connection with any Permitted Investment and (b) Existing Earnouts and Unfunded Holdbacks.

ECF Prepayment Percentage” means, as of any date of determination, (a) if the Total Net Leverage Ratio is greater than 1.50:1.00, 50%, (b) if the Total Net Leverage Ratio is less than or equal to 1.50:1.00 and greater than 1.00:1.00, 25% and (c) if the Total Net Leverage Ratio is less than or equal to 1.00:1.00, 0%

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

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

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

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.07(b)(iii) and (v); provided that the following Persons shall not be Eligible Assignees: (a) any Defaulting Lender, and (b) any Person that is Disqualified Lender (other than pursuant to clause (d) of the definition thereof).

EMU” means the Economic and Monetary Union as contemplated in the EU Treaty.

EMU Legislation” means the legislative measures of the EMU for the introduction of, changeover to, or operation of the Euro in one or more member states.

Environmental Claim” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations by any Governmental Authority, or proceedings with respect to any Environmental Liability or pursuant to Environmental Law, including those (a) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law and (b) by any Person seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief pursuant to any Environmental Law.

Environmental Laws” means any and all Laws relating to the protection of the environment or, to the extent relating to exposure to hazardous materials, human health.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Loan Party or any of its Restricted Subsidiaries, directly or indirectly, resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the

33


 

release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Environmental Permit” means any permit, approval, identification number, license or other authorization required under or issued pursuant to any Environmental Law.

Equal Priority Intercreditor Agreement” means (a) the Closing Date Intercreditor Agreement and (b) each other “pari passu” intercreditor agreement substantially in the form attached hereto as Exhibit J-2 (as the same may be modified in a manner satisfactory to the Administrative Agent, the Collateral Agent and the Borrower). Upon the request of the Borrower, the Administrative Agent and the Collateral Agent may execute and deliver an Equal Priority Intercreditor Agreement with one or more Debt Representatives for Pari Passu Lien Debt permitted hereunder.

Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in, including any limited or general partnership interest and any limited liability company membership interest) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).

ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder.

ERISA Affiliate” means any trade or business (whether or not incorporated) that together with any Loan Party is (or was at any relevant time) treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.

ERISA Event” means (a) the occurrence of a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any of their respective ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations by any Loan Party or any of its respective ERISA Affiliates that is treated as a termination under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any of their respective ERISA Affiliates from a Multiemployer Plan, written notification of any Loan Party or any of their respective ERISA Affiliates concerning the imposition of Withdrawal Liability or that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA; (d) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the imposition of any liability under Title IV of ERISA, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any of their respective ERISA Affiliates; (f) the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) with respect to any Pension Plan; (g) the application by any Loan Party or any of its respective ERISA Affiliates for a minimum funding waiver under Section 302(c) of ERISA with respect to a Pension Plan; (h) the imposition of a lien under Section 303(k) of ERISA with respect to any Pension Plan; or (i) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 303 of ERISA).

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Erroneous Payment” has the meaning specified in Section 9.17.

Erroneous Payment Deficiency Assignment” has the meaning specified in Section 9.17.

Erroneous Payment Impacted Class” has the meaning specified in Section 9.17.

Erroneous Payment Return Deficiency” has the meaning specified in Section 9.17.

Ethically Screened Affiliate” means any Affiliate of a Lender that (i) is managed as to day-to-day matters (but excluding, for the avoidance of doubt, as to strategic direction and similar matters) independently from such Lender and any other Affiliate of such Lender that is not an Ethically Screened Affiliate, (ii) has in place customary information screens and procedures between it and such Lender (and any other Affiliate of such Lender that is not an Ethically Screened Affiliate) to prevent the sharing of confidential information between such Lender and any other Affiliate of such Lender that is not an Ethically Screened Affiliate and (iii) (x) such Lender (or any other Affiliate of such Lender that is not an Ethically Screened Affiliate) does not direct or cause the direction of the investment policies of such entity, (y) such Lender’s or any such other Affiliate’s investment decisions does not influence the investment decisions of such entity, and (z) such Ethically Screened Affiliate has fiduciary duties to investors or other equityholders and such investors or equityholders are not the same as the investors or equityholders of such Lender and any other Affiliate of such Lender that is not an Ethically Screened Affiliate.

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

EU Treaty” means the Treaty on European Union.

Euro” and “” mean the single currency of the Participating Member States introduced in accordance with the provisions of Article 109(i)4 of the EU Treaty.

Event of Default” has the meaning specified in Section 8.01.

Excess Cash Flow” means, for any period, an amount equal to the excess of:

(a)
the sum, without duplication, of:
(i)
Consolidated Net Income of the Borrower and the Restricted Subsidiaries for such period, plus
(ii)
an amount equal to the amount of all non-cash charges (including depreciation and amortization) for such period to the extent deducted in arriving at such Consolidated Net Income, but excluding any such non-cash charges representing an accrual or reserve for potential cash items in any future period and excluding amortization of a prepaid cash item that was paid in a prior period, plus
(iii)
decreases in Consolidated Working Capital for such period (other than any such decreases arising from acquisitions or Dispositions by the Borrower and the Restricted Subsidiaries completed during such period, the application of purchase accounting or the reclassification of items from short term to long term or vice versa), plus

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(iv)
an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income, plus
(v)
the amount deducted as tax expense in determining Consolidated Net Income to the extent in excess of cash taxes paid in such period, plus
(vi)
cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in such Consolidated Net Income, over
(b)
the sum, without duplication, of:
(i)
an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (but excluding any non-cash credit to the extent representing the reversal of an accrual or reserve described in clause (a)(ii) above) and cash charges excluded by virtue of clauses (a) through (l) (other than clause (g)) of the definition of “Consolidated Net Income”, plus
(ii)
without duplication of amounts deducted pursuant to clause (b)(xi) below or this clause (b)(ii) in prior periods, the amount of Capital Expenditures or acquisitions of intellectual property accrued or made in cash during such period to the extent not financed with the proceeds of Funded Debt, plus
(iii)
the aggregate amount of all principal payments of Indebtedness (including the principal component of payments in respect of Capitalized Leases) of the Borrower and the Restricted Subsidiaries to the extent such prepayments or repayments are not funded with the proceeds of Funded Debt, excluding (A) all payments of Indebtedness described in Section 2.07(b)(i)(B)(I)-(II) to the extent such payments reduce the repayment of Term Loans that would otherwise be required by Section 2.07(b)(i), (B) all payments of Indebtedness pursuant to and in accordance with Section 7.09(a)(ix)(A), and (C) any prepayment of revolving loans to the extent there is not an equivalent permanent reduction in commitments thereunder, plus
(iv)
an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income and the net cash loss on Dispositions to the extent otherwise added to arrive at Consolidated Net Income, plus
(v)
increases in Consolidated Working Capital for such period (other than any such increases arising from acquisitions or Dispositions by the Borrower and the Restricted Subsidiaries completed during such period, the application of purchase accounting or the reclassification of items from short term to long term or vice versa), plus
(vi)
cash payments by the Borrower and the Restricted Subsidiaries actually made during such period to the extent not financed with the proceeds of Funded Debt in respect of any purchase price holdbacks, earn-out obligations, long-term liabilities of the Borrower and the Restricted Subsidiaries (other than Indebtedness) to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income for such period (and so long as there has not been any reduction in respect of such payments in arriving at Consolidated Net Income for such fiscal year), plus

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(vii)
without duplication of amounts deducted pursuant to clauses (viii) and (xi) below in prior periods, the amount of Permitted Investments, including permitted Acquisition Transactions (in each case, including costs and expenses related thereto), made in cash during such period pursuant to Section 7.02 (excluding Investments in the Borrower or any Subsidiary, Investments in cash or Cash Equivalents, or Investments pursuant to Section 7.02(hh)(i)) to the extent that such Permitted Investments were not financed with the proceeds of Funded Debt, plus
(viii)
the amount of Restricted Payments actually paid in cash (and permitted to be paid) during such period pursuant to Section 7.06 (excluding Restricted Payments to the Borrower or any Subsidiary or pursuant to Sections 7.06(m) (if declared in reliance on Section 7.06(s)(i) or otherwise already included in this clause (viii)), and 7.06(s)(i)) to the extent such Restricted Payments were not financed with the proceeds of Funded Debt, plus
(ix)
the aggregate amount of expenditures actually made by the Borrower and its Restricted Subsidiaries to the extent not financed with the proceeds of Funded Debt during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such fiscal year or are not deducted in calculating Consolidated Net Income (and so long as there has not been any reduction in respect of such expenditures in arriving at Consolidated Net Income for such period), plus
(x)
to the extent such were not deducted in calculating Consolidated Net Income for such period, the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are made in connection with any prepayment of any principal of Indebtedness to the extent such prepayment of principal reduced Excess Cash Flow pursuant to clause (b)(iii) above or reduced the mandatory prepayment required by Section 2.07(b)(i), plus
(xi)
without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts, commitments, or binding purchase orders (to the extent not financed with the proceeds of Funded Debt, the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions (or Investments similar to those made for Permitted Acquisitions), Capital Expenditures or acquisitions of intellectual property to be consummated; provided that, to the extent the aggregate amount actually utilized to finance such Permitted Acquisitions (or Investments similar to those made for Permitted Acquisitions), Capital Expenditures or acquisitions of intellectual property during any period is less than the Contract Consideration that reduced Excess Cash Flow for the prior period, the amount of such shortfall shall be added to the calculation of Excess Cash Flow for such period, plus
(xii)
the amount of cash taxes (including penalties and interest) paid or tax reserves set aside or payable (without duplication) in such period, to the extent they exceed the amount of tax expense deducted in calculating Consolidated Net Income for such period, plus
(xiii)
cash expenditures in respect of Hedge Agreements during such period to the extent not deducted in calculating Consolidated Net Income; plus

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(xiv)
any amount related to items that were added to or not deducted from Net Income in calculating Consolidated Net Income or were added to or not deducted from Consolidated Net Income, in each case to the extent such items represented a cash payment which had not reduced Excess Cash Flow upon the accrual thereof in a prior Test Period, or an accrual for a cash payment, by the Borrower and its Restricted Subsidiaries or did not represent cash received by the Borrower and its Restricted Subsidiaries, in each case on a consolidated basis during such Test Period;

provided that, at the option of the Borrower, any item that meets the criteria of any sub-clause of this clause (b) after the end of the applicable period and prior to the applicable date of calculation of Excess Cash Flow for such period may, at the Borrower’s option, be included in the applicable period, but not in any calculation pursuant to this clause (b) for the subsequent calculation period if such election is made.

Exchange Act” means the Securities Exchange Act of 1934, as amended.

Exchange Rate” means, on any date with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth at approximately 11:00 a.m., London time, on such date on the applicable Bloomberg page for such currency. In the event that such rate does not appear on any Bloomberg page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying the exchange rates as may be selected by the Administrative Agent, or, in the event no such service is selected, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of the relevant currency for delivery two Business Days later; provided that, if at the time of any such determination, for any reason no such spot rate is being quoted, the Administrative Agent, after consultation with the Borrower, may use any reasonable method that it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

Excluded Asset” has the meaning specified in the Security Agreement.

Excluded Debt Facility” means (a) any financing that is not a Comparable Financing, and (b) any Comparable Financing that (i) is a customary bridge facility or (ii) in an original aggregate principal amount not to exceed an amount equal to the greater of (x) $180,000,000 and (y) 50% of LTM Consolidated Adjusted EBITDA as of the applicable date of determination.

Excluded Equity Interests” has the meaning specified in the Security Agreement.

Excluded Subsidiary” means:

(a)
any Subsidiary that is not a wholly owned Subsidiary of a Loan Party;
(b)
any direct or indirect Foreign Subsidiary of the Borrower;
(c)
any FSHCO;
(d)
any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary or FSHCO;

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(e)
any Subsidiary that is prohibited or restricted by applicable Law from providing a Guaranty or by a binding contractual obligation existing on the Closing Date or at the time of the acquisition of such Subsidiary (and not incurred in contemplation of such acquisition) from providing a Guaranty (provided that such contractual obligation is not entered into by the Borrower or its Restricted Subsidiaries principally for the purpose of qualifying as an “Excluded Subsidiary” under this definition) or if such Guaranty would require governmental (including regulatory) or third party (other than the Borrower or a Restricted Subsidiary) consent, approval, license or authorization, unless such consent, approval, license or authorization has been obtained;
(f)
any special purpose securitization vehicle (or similar entity) including any Securitization Subsidiary created pursuant to a transaction permitted under this Agreement;
(g)
any Subsidiary that is a not-for-profit organization;
(h)
any Captive Insurance Subsidiary;
(i)
any other Subsidiary with respect to which, as reasonably agreed between the Administrative Agent and the Borrower, the cost or other consequences (including any material adverse tax consequences) of providing the Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom;
(j)
any other Subsidiary to the extent the provision of a Guaranty by such Subsidiary would reasonably be expected to result in material adverse tax consequences to (i) the Borrower or (ii) any of the Restricted Subsidiaries, in each case as determined by the Borrower in good faith;
(k)
any Unrestricted Subsidiary; and
(l)
any Immaterial Subsidiary;

provided that the Borrower, in its sole discretion (or in the case of any Foreign Subsidiary, with the consent of the Administrative Agent not to be unreasonably withheld), may cause any Restricted Subsidiary that qualifies as an Excluded Subsidiary under clauses (a) through (l) above to become a Guarantor in accordance with the definition thereof (subject to completion of any requested “know your customer” and similar requirements of the Administrative Agent) and thereafter such Subsidiary shall not constitute an “Excluded Subsidiary” (unless and until the Borrower elects to designate such Persons as an Excluded Subsidiary and such redesignation as an Excluded Subsidiary shall be subject to (i) the absence of any Specified Event of Default and (ii) treating any Investment in such Excluded Subsidiary as an Investment made on the date of and after giving effect to such designation).

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any keepwell, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such

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Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.

Excluded Taxes” has the meaning specified in Section 3.01(a).

Existing Earnouts and Unfunded Holdbacks” shall mean those earnouts and unfunded holdbacks existing on the Closing Date.

Existing Revolving Facility” means that certain Revolving Facility Credit Agreement, dated as of September 30, 2020, by and between the Borrower, as borrower thereunder, and the Mizuho Bank, Ltd, as administrative agent thereunder and the lenders from time to time party thereto, as the same may be amended, restated, amended and restated, waived or otherwise modified from time to time.

Existing Term Loan Agent” means Credit Suisse AG, Cayman Islands Branch.

Existing Term Loan Credit Agreement” means that certain Term Loan Credit Agreement, dated as of September 30, 2020, by and between the Borrower, as borrower thereunder, the Existing Term Loan Agent and the lenders from time to time party thereto as in effect on the Closing Date (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) or any Permitted Refinancing thereof.

Existing Term Loans” means the “Term Loans” as defined in the Term Loan Credit Agreement.

Extended Commitments” means, collectively, Extended Revolving Commitments and Extended Term Commitments.

Extended Loans” means, collectively, Extended Revolving Loans and Extended Term Loans.

Extended Revolving Commitments” means the Revolving Commitments held by an Extending Lender.

Extended Revolving Loans” means the Revolving Loans made pursuant to Extended Revolving Commitments.

Extended Term Commitments” means the Term Loan Commitments held by an Extending Lender.

Extended Term Loans” means the Term Loans made pursuant to Extended Term Commitments.

Extending Lender” means each Lender accepting an Extension Offer.

Extension” has the meaning specified in Section 2.18(a).

Extension Amendment” has the meaning specified in Section 2.18(b).

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Extension Offer” has the meaning specified in Section 2.18(a).

Facility” means the Revolving Loans, the Term Loans (including the Amendment No. 1 Term Loans), any Extended Revolving Commitments and Extended Revolving Loans, any Incremental Revolving Loans, any Refinancing Revolving Loans, any Extended Term Commitments and Extended Term Loans, any Refinancing Term Loans or any Incremental Term Loans, as the context may require.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities implementing such Sections of the Code.

FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended or modified from time to time.

Federal Funds Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate for any day is less than zero, the Federal Funds Rate for such day will be deemed to be zero.

Fee Letter” means the Fee Letter, dated as of September 30, 2020, among the Borrower and the Administrative Agent.

Financial Covenant” has the meaning specified in Section 8.01(e).

First Lien Net Leverage Ratio” means, with respect to any Test Period, the ratio produced by dividing (a) Consolidated First Lien Net Debt, by (b) LTM Consolidated Adjusted EBITDA for such Test Period.

Fixed Incremental Amount” means, as of the date of measurement, the sum of (a) the greater of (i) $325,000,000 and (ii) 100% of LTM Consolidated Adjusted EBITDA as of the applicable date of determination minus, (b) without duplication of any amounts incurred in reliance on this definition, the aggregate amount of (i) any Incremental Loans or Commitments incurred and then outstanding in reliance on the Fixed Incremental Amount, and (ii) any Term Loan Incremental Facility incurred in reliance on the “Fixed Incremental Amount” (as defined in the Term Loan Credit Agreement) and then outstanding, and (iii) any Incremental Equivalent Debt incurred in reliance on the Fixed Incremental Amount and then outstanding.

Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (c) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (d) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (e) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

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Flood Insurance Laws Certificate” means, with respect to each Material Real Property, a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination indicating whether such Material Real Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be located in a special flood hazard area.

Foreign Casualty Event” has the meaning specified in Section 2.07(b)(vi)(A).

Foreign Disposition” has the meaning specified in Section 2.07(b)(vi)(A).

Foreign Lender” has the meaning specified in Section 3.01(b).

Foreign Plan” means any material employee benefit plan, program or agreement maintained or contributed to by, or entered into with, the Borrower or any Restricted Subsidiary of the Borrower with respect to employees employed outside the United States (other than benefit plans, programs or agreements that are mandated by applicable Laws).

Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower that is not a Domestic Subsidiary.

FRB” means the Board of Governors of the Federal Reserve System of the United States.

Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the Issuing Banks, such Defaulting Lender’s Pro Rata Share of the outstanding Letters of Credit Obligations other than such Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

FSHCO” means any direct or indirect Subsidiary of the Borrower that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) in one or more (a) Foreign Subsidiaries and/or (b) other FSHCOs.

Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

Funded Debt” means all Indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.

GAAP” means generally accepted accounting principles in the United States, as in effect from time to time, or such other internationally recognized accounting standard following an Accounting Change.

General Asset Sale Basket” has the meaning specified in Section 7.05(j).

Global Intercompany Note” means an agreement executed by each Restricted Subsidiary of the Borrower, in substantially the form of Exhibit L.

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

Grant Event” means the occurrence of any of the following:

(a)
the formation or acquisition by a Loan Party of a new wholly owned Restricted Subsidiary (other than an Excluded Subsidiary);
(b)
the designation in accordance with Section 6.13 of a wholly owned Unrestricted Subsidiary (other than an Excluded Subsidiary) of any Loan Party as a Restricted Subsidiary;
(c)
any Person (other than an Excluded Subsidiary) becoming a wholly owned Restricted Subsidiary of a Loan Party;
(d)
any wholly owned Restricted Subsidiary of a Loan Party ceasing to be an Excluded Subsidiary; or
(e)
any Excluded Subsidiary designated as a Guarantor pursuant to the proviso set forth in the definition of “Excluded Subsidiary”.

Granting Lender” has the meaning specified in Section 10.07(g).

Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien (other than a Permitted Lien) on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business or customary, Permitted Liens, and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

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Guarantors” has the meaning set forth in the Guaranty.

Guaranty” means (a) the guaranty made by the Guarantors in favor of the Administrative Agent on behalf of the Secured Parties substantially in the form of Exhibit E and (b) each other guaranty, guaranty supplement or comparable guaranty documentation delivered pursuant to Section 6.11.

Guaranty Release Event” has the meaning specified in Section 9.11(a)(ii).

Guaranty Supplement” means the “Guaranty Supplement” as defined in the Guaranty.

Hazardous Materials” means any materials, substances or wastes that are listed, classified or regulated as “hazardous”, “toxic”, “contaminants”, or “pollutants,” (or words of similar regulatory intent) by any Governmental Authority or under any Environmental Law, including petroleum or petroleum by-products (including gasoline, crude oil or any fraction thereof), asbestos or asbestos-containing materials, polychlorinated biphenyls and radon gas.

Hedge Agreement” means any agreement with respect to (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Hedge Bank” means any Person that is an Agent, a Lender, a Lead Arranger or an Affiliate of any of the foregoing on the Closing Date (with respect to any Secured Hedge Agreement entered into on or prior to the Closing Date) or at the time it enters into a Secured Hedge Agreement, in its capacity as a party thereto, whether or not such Person subsequently ceases to be an Agent, a Lender, a Lead Arranger or an Affiliate of any of the foregoing; provided, at the time of entering into a Secured Hedge Agreement, no Hedge Bank shall be a Defaulting Lender.

HMT” means His Majesty’s Treasury of the United Kingdom.

Identified Transaction” has the meaning specified in Section 9.11(b).

IFRS” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.

Immaterial Subsidiary” means any Subsidiary of the Borrower other than a Material Subsidiary.

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Incremental Amendment” has the meaning specified in Section 2.16(e).

Incremental Amount” has the meaning specified in Section 2.16(c).

Incremental Equivalent Debt” has the meaning specified in Section 7.03(i).

Incremental Facility” has the meaning specified in Section 2.16(a).

Incremental Loans” has the meaning specified in Section 2.16(a).

Incremental Revolving Loans” has the meaning specified in Section 2.16(a).

Incremental Term Loans” has the meaning specified in Section 2.16(a).

Incurred Acquisition Debt” means incurred in connection with a Permitted Acquisition, Acquisition Transaction or Investment; provided that:

(a)
the aggregate principal amount of all Incurred Acquisition Debt on any date such Indebtedness is incurred (or commitments with respect thereto are made) shall not exceed the amounts otherwise permitted to be incurred pursuant to clause (a) of the definition of Permitted Ratio Debt;
(b)
(i) to the extent secured by a Lien on property or assets of the Borrower or any of its Restricted Subsidiaries, any Incurred Acquisition Debt shall not be secured by any Lien on any property or asset of such Person that does not also secure the Revolving Loans and the Amendment No. 1 Term Loans (except (1) customary cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender, (2) Liens on property or assets applicable only to periods after the Latest Maturity Date of the Revolving Loans and the Amendment No. 1 Term Loans at the time of incurrence, and (3) any Liens on property or assets to the extent that a Lien on such property or asset is also added for the benefit of the Lenders under the Revolving Loans and the Amendment No. 1 Term Loans for so long as such Liens secure such Incurred Acquisition Debt); and (ii) to the extent guaranteed by any of the Borrower’s Restricted Subsidiaries, any such Incurred Acquisition Debt shall not be guaranteed by any such Person that is not (or is not required to be) a Loan Party (except (1) for guarantees by other Persons that are applicable only to periods after the Latest Maturity Date of the Revolving Loans and the Amendment No. 1 Term Loans at the time of incurrence and (2) any such Person guaranteeing such Incurred Acquisition Debt that also guarantees the Revolving Loans and the Amendment No. 1 Term Loans for so long as such Person guarantees such Incurred Acquisition Debt);
(c)
the terms and conditions applicable to any such Incurred Acquisition Debt are either: (i) substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Revolving Facility, in the case of Incurred Acquisition Debt that is a revolving facility, or the Amendment No. 1 Term Loans, in the case of Incurred Acquisition Debt that is not a revolving facility, as determined in good faith by a Responsible Officer of the Borrower in its reasonable judgment (except (A) for terms and conditions applicable only to periods after the scheduled final maturity date of the Revolving Facility or the Amendment No. 1 Term Loans, as applicable, at the time of incurrence and (B) any term or condition to the extent such term or condition is also added for the benefit of the Lenders under the Revolving Facility or the Amendment No. 1 Term Loans, as applicable); or (ii) consistent with customary market terms and conditions at the

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time of such incurrence, including with respect to high yield debt securities to the extent applicable, as determined in good faith by a Responsible Officer of the Borrower in its reasonable judgment; provided that, (1) in the case of both clause (i) and (ii) a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of any such Incurred Acquisition Debt (or receipt of commitments with respect thereto), together with a reasonably detailed description of the material terms and conditions of such Incurred Acquisition Debt or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (ec