UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended September 30, 2022
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition
period from _______ to ________
Commission File Number: 001-39030
CERENCE INC.
(Exact name of Registrant as specified in its Charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
1 Burlington Woods Drive,
Suite 301A
Burlington, Massachusetts
(Address of principal executive offices)
83-4177087
(I.R.S. Employer
Identification No.)
01803
(Zip Code)
Registrant’s telephone number, including area code: (857) 362-7300
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common stock, par value $0.01 per share
Trading
Symbol(s)
CRNC
Name of each exchange on which registered
The Nasdaq Global Select Market
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES ☒ NO ☐
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. YES ☐ NO ☒
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES ☒ NO ☐
Indicate by check mark whether the Registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of
this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit such files). YES ☒ NO ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
Non-accelerated filer
☒
☐
Emerging growth company
☐
Accelerated filer
☐
Smaller reporting 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. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting
under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Act). YES ☐ NO ☒
As of March 31, 2022, the aggregate market value of the registrant’s common stock held by non-affiliates of the registrant was approximately $1.4 billion based on the closing price of
the common stock on the Nasdaq Global Select Market for such date.
The number of shares of Registrant’s common stock outstanding as of November 15, 2022 was 39,942,174.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s definitive Proxy Statement to be filed with the Securities and Exchange Commission in connection with the Registrant’s 2023 Annual Meeting of
Stockholders are incorporated by reference into Part III of this Form 10-K. Such Proxy Statement will be filed within 120 days of the Registrant’s fiscal year ended September 30,
2022.
Table of Contents
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Reserved
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accounting Fees and Services
Exhibits, Financial Statement Schedules
Form 10-K Summary
PART I
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
PART II
Item 5.
Item 6
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Item 9C
PART III
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
PART IV
Item 15.
Item 16
SIGNATURES
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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K, or Form 10-K, filed by Cerence Inc. together with its consolidated subsidiaries, “Cerence”, the “Company,”
“we,” “us” or “our” unless the context indicates otherwise, contains “forward-looking statements” that involve risks and uncertainties. These statements can
be identified by the fact that they do not relate strictly to historical or current facts, but rather are based on current expectations, estimates, assumptions,
plans and projections about our business, operations, industry, financial results, financial condition, strategy, goals, or prospects. Forward-looking
statements often include words such as “anticipates,” “estimates,” “expects,” “projects,” “forecasts,” “intends,” “plans,” “continues,” “believes,” “may,”
“will,” “goals” and words and terms of similar substance in connection with discussions of our business and future operating or financial performance. As
with any projection or forecast, forward-looking statements are inherently susceptible to uncertainty and changes in circumstances. Our actual results may
vary materially from those expressed or implied in our forward-looking statements. Accordingly, undue reliance should not be placed on any forward-
looking statement made by us or on our behalf. Although we believe that the forward-looking statements contained in this Form 10-K are based on
reasonable assumptions, you should be aware that many factors could affect our actual financial results or results of operations and could cause actual
results to differ materially from those in such forward-looking statements, including but not limited to:
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adverse conditions in the automotive industry or the global economy more generally, including as a result of the COVID-19 pandemic, the
conflict between Russia and Ukraine, and inflation and rising interest rates;
the continuation of the semiconductor shortage being experienced by the automotive industry;
the duration and severity of the COVID-19 pandemic and its impact on our business and financial performance, including the impact of new
variants such as Omicron;
the highly competitive and rapidly changing market in which we operate;
our employees are represented by workers councils or unions or are subject to local laws that are less favorable to employers than the laws of
the U.S.;
fluctuations in our financial and operating results;
our inability to control and successfully manage our expense and cash positions;
escalating pricing pressures from our customers;
the impact on our business of the transition to a lower level of fixed contracts, including, but not limited to, the failure to achieve the expected
predictability and growth in our reported revenue following a transition year of fiscal 2023;
our failure to win, renew or implement service contracts;
the cancellation or postponement of service contracts after a design win;
the loss of business from any of our largest customers;
inability to recruit and retain qualified personnel;
cybersecurity and data privacy incidents that damage client relations;
interruption or delays in our services or services from data center hosting facilities or public clouds;
economic, political, regulatory, foreign exchange and other risks of international operations;
unforeseen U.S. and foreign tax liabilities;
increases or decreases to valuation allowances recorded against deferred tax assets;
impairment of our goodwill and other intangible assets;
the failure to protect our intellectual property or allegations that we have infringed the intellectual property of others;
defects in our software products that result in lost revenue, expensive correction or claims against us;
our inability to quickly respond to changes in technology and to develop our intellectual property into commercially viable products;
our strategy to increase cloud services and ability to successfully introduce new products, applications or services;
a significant interruption in the supply or maintenance of our third-party hardware, software, services or data;
restrictions on our current and future operations under the terms of our debt and the use of cash to service our debt; and
certain factors discussed elsewhere in this Form 10-K.
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These and other factors are more fully discussed in the “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” sections and elsewhere in this Form 10-K. These risks could cause actual results to differ materially from those implied by forward-
looking statements in this Form 10-K. Even if our results of operations, financial condition and liquidity and the development of the industry in which we
operate are consistent with the forward-looking statements contained in this Form 10-K, those results or developments may not be indicative of results or
developments in subsequent periods.
Any forward-looking statements made by us in this Form 10-K speak only as of the date on which they are made. We are under no obligation to, and
expressly disclaim any obligation to, update or alter our forward-looking statements, whether as a result of new information, subsequent events or
otherwise, except as required by law.
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Risk Factor Summary
The following is a summary of the principal risks described below in Part I, Item 1A "Risk Factors" in this Annual Report on Form 10-K. We
believe that the risks described in the "Risk Factors" section are material to investors, but other factors not presently known to us or that we currently
believe are immaterial may also adversely affect us. The following summary should not be considered an exhaustive summary of the material risks facing
us, and it should be read in conjunction with the "Risk Factors" section and the other information contained in this Annual Report on Form 10-K.
Risks Relating to Our Business
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The market in which we operate is highly competitive and rapidly changing and we may be unable to compete successfully.
Adverse conditions in the automotive industry or the global economy more generally could have adverse effects on our results of operations.
Pandemics or disease outbreaks, such as COVID-19, have disrupted, and may continue to disrupt, our business, which could adversely affect
our financial performance.
Our strategy to increase cloud connected services may adversely affect our near-term revenue growth and results of operations.
Pricing pressures from our customers may adversely affect our business.
• We invest effort and money seeking OEMs’ validation of our technology, and there can be no assurance that we will win or be able to renew
service contracts.
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Our business could be materially and adversely affected if we lost any of our largest customers.
Our operating results may fluctuate significantly from period to period, and this may cause our stock price to decline.
• We may not be successful with the adoption of new products.
• We may be unable to attract and retain key personnel, and some of our employees are represented by workers councils or unions or are subject
to local laws that are less favorable to employers than the laws of the U.S.
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Cybersecurity and data privacy incidents or breaches may damage client relations and inhibit our growth.
Compliance with global privacy and data security requirements could result in additional costs and liabilities to us or inhibit our ability to
collect and process data globally, and the failure to comply with such requirements could have a material adverse effect on our business,
financial condition or results of operations.
A significant portion of our revenues and research and development activities originate outside the United States. Our results could be harmed
by economic, political and regulatory risks associated with these international regions and foreign currency fluctuations.
Our business in China is subject to aggressive competition and is sensitive to economic, market and political conditions.
Interruptions or delays in our services or services from data center hosting facilities or public clouds could impair the delivery of our services
and harm our business.
If our goodwill or other intangible assets become impaired, our operating results could be negatively impacted.
Risks Relating to our Intellectual Property and Technology
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Third parties have claimed and may claim in the future that we are infringing their intellectual property, and we could be exposed to significant
litigation or licensing expenses or be prevented from selling our products if such claims are successful.
Unauthorized use of our proprietary technology and intellectual property could adversely affect our business and results of operations.
Our software products may have bugs, which could result in delayed or lost revenue, expensive correction, liability to our customers and claims
against us.
• We may be unable to respond quickly enough to changes in technology and technological risks and to develop our intellectual property into
commercially viable products.
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• We utilize certain key technologies, content and services from, and integrate certain of our solutions with, third parties and may be unable to
replace those technologies, content and services if they become obsolete, unavailable or incompatible with our solutions.
Risks Relating to the Spin-Off
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If the Spin-Off were determined not to qualify as tax-free for U.S. federal income tax purposes, we could have an indemnification obligation to
Nuance Communications Inc ("Nuance"), which could adversely affect our business, financial condition and results of operations.
• We have agreed to numerous restrictions to preserve the non-recognition treatment of the Spin-Off, which may reduce our strategic and
operating flexibility.
• We may be unable to achieve some or all of the benefits that we expect to achieve from the Spin-Off.
• We may have potential business conflicts of interest with Nuance with respect to our past and ongoing relationships.
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The allocation of intellectual property rights and data between Nuance and Cerence as part of the Spin-Off, could adversely impact our
reputation, our ability to enforce certain intellectual property rights, and our competitive position.
Risks Relating to Our Securities and Indebtedness
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The terms of the Senior Credit Facilities restrict our current and future operations, particularly our ability to incur debt that we may need to
fund initiatives in response to changes in our business, the industry in which we operate, the economy and governmental regulations.
• We may evaluate whether to pay cash dividends on our common stock in the future, and the terms of our Senior Credit Facilities limit our
ability to pay dividends on our common stock.
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Servicing our debt may require a significant amount of cash. We may not have sufficient cash flow from our business to pay our indebtedness.
The conditional conversion feature of the Notes, if triggered, may adversely affect our financial condition and results of operations and the
value of our common stock.
The accounting method for convertible debt securities that may be settled in cash, such as the Notes, could have a material effect on our
reported financial results.
Certain provisions in our organizational documents and Delaware law may discourage takeovers.
Our Amended and Restated Certificate of Incorporation designates the courts of the State of Delaware as the sole and exclusive forum for
certain types of proceedings, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes.
General Risk Factors
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Tax matters may cause significant variability in our financial results and may impact our overall financial condition.
The commercial and credit environment may adversely affect our access to, and the cost of, capital.
Our stock price may fluctuate significantly.
Your percentage ownership in Cerence may be diluted in the future.
If we fail to maintain proper and effective internal controls, our ability to produce accurate and timely financial statements could be impaired
and investors’ views of us could be harmed.
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Item 1. Business.
Overview
PART I
Cerence builds AI powered virtual assistants for the mobility/transportation market. Our primary target is the automobile market, but our solutions
can apply to all forms of transportation including but not limited to two-wheel vehicles, planes, tractors, cruise ships and elevators. Our solutions power
natural conversational and intuitive interactions between vehicles, drivers and passengers, and the broader digital world. We are a premier provider of AI-
powered assistants and innovations for connected and autonomous vehicles, including one of the world’s most popular software platforms for building
automotive virtual assistants, such as “Hey BMW” and “Ni hao Banma”. Our customers include all major automobile original equipment manufacturers, or
OEMs, or their tier 1 suppliers worldwide, including BMW, Daimler, FCA Group, Ford, Geely, GM, Renault-Nissan, SAIC, Toyota, Volkswagen Group,
Aptiv, Bosch, Continental, DENSO TEN, NIO, XPeng and Harman. We deliver our solutions on a white-label basis, enabling our customers to deliver
customized virtual assistants with unique, branded personalities and ultimately strengthening the bond between their brands and end users. Our vision is to
enable a more enjoyable, safer journey for everyone.
Our platform utilizes industry-leading speech recognition, natural language understanding, speech signal enhancement, text-to-speech, and acoustic
modeling technology to provide a conversational AI-based solution. Virtual assistants built with our platform can enable a wide variety of modes of human-
vehicle interaction, including speech, touch, handwriting, gaze tracking and gesture recognition, and can support the integration of third-party virtual
assistants into the in-vehicle experience.
Our software platform is a market leader for building integrated, branded and differentiated virtual assistants for automobiles. As a unified platform
and common interface for automotive cognitive assistance, our software platform provides OEMs and suppliers with an important control point with
respect to the mobility experience and their brand value. Our platform is fully customizable and designed to support our customers in creating their own
ecosystem in the automobile and transforming the vehicle into a hub for numerous connected devices and services. Virtual assistants built with our software
platform can address user requests across a wide variety of categories, such as navigation, control, media, communication and tools. Our software platform
is comprised of edge computing and cloud-connected software components and a software framework linking these components together under a common
programming interface. We implement our software platform for our customers through our professional services organization, which works with OEMs
and suppliers to optimize our software for the requirements, configurations and acoustic characteristics of specific vehicle models.
The market for automotive cognitive assistance is rapidly expanding. The proliferation of smartphones and smart speakers has encouraged
consumers to rely on a growing number of virtual assistants and special-purpose bots for various tasks such as controlling entertainment systems and
checking the news. Automobile drivers and passengers increasingly expect hands-free access to virtual assistants as part of the mobility experience, with
common use cases in a variety of categories including mobility domains such as navigation, voice-activated texts, and telephone communication,
automobile domains, such as automobile user guides, and ignition on-off, and generic domains, such as entertainment. To meet the increasing demand for
automotive cognitive assistance and to offer differentiated mobility experiences, OEMs and suppliers are building proprietary virtual assistants into an
increasing proportion of their vehicles. We believe that this trend will continue and that consumer appetite for automotive cognitive assistance will grow
further as vehicles become more autonomous and drivers pursue new forms of human-vehicle engagement previously not feasible during vehicle operation.
We generate revenue primarily by selling software licenses and cloud-connected services. In addition, we generate professional services revenue
from our work with OEMs and suppliers during the design, development and deployment phases of the vehicle model lifecycle and through maintenance
and enhancement projects. Through our over 20 years in the automotive industry, we have developed longstanding industry relationships and benefit from
incumbency. We have existing relationships with all major OEMs or their tier 1 suppliers, and while our customer contracts vary, they generally represent
multi-year engagements, giving us visibility into future revenue. We have master agreements or similar commercial arrangements in place with many of our
customers, supporting customer retention over the long term.
As of September 30, 2022, we had five-year remaining performance obligations of $303.5 million, which includes $217.6 million of estimated
future revenue related to remaining performance obligations and $85.9 million of contractual commitments which have not yet been invoiced. As of
September 30, 2022, we had variable five-year backlog of $0.8 billion, which includes estimated future revenue from variable forecasted royalties related to
our embedded and connected businesses. Our estimation of forecasted royalties is based on our royalty rates for embedded and connected technologies
from expected car shipments under our existing contracts over the term of the programs. Anticipated shipments are based on historical shipping experience
and current customer projections that management believes are reasonable as of the date of this Form 10-K. Both our embedded and connected
technologies are priced and sold on a per-vehicle or device basis, where we receive a single fee for either or both the embedded license and the connected
service term. However, our five-year backlog may not be indicative of our actual future revenue. The revenue we actually recognize is subject to several
factors, including the number and timing of vehicles our customers ship, potential terminations or
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changes in scope of customer contracts, and currency fluctuations. As of September 30, 2022, we estimate our five-year backlog to be $1.1 billion,
including $303.5 million of five-year remaining performance obligations and $0.8 billion of five-year variable backlog. As of September 30, 2021, the
estimated five-year backlog was $1.3 billion.
Our solutions have been installed in more than 450 million automobiles to date, including over 40 million new vehicles in fiscal 2022 alone. Based
on royalty reports provided by our customers and third-party reports of total vehicle production worldwide, we estimate that approximately 51% of all cars
shipped during the fiscal year ended September 30, 2022 included Cerence technologies. Cerence hybrid solutions shipped on approximately 8.0 million
vehicles during the fiscal year ended September 30, 2022. In aggregate, over 80 OEMs and Tier 1 suppliers worldwide use our solutions, covering over 70
languages and dialects, including English, German, Spanish, French, Mandarin, Cantonese, Japanese and Hindi.
In fiscal year 2022, we generated revenue of $327.9 million, a decrease of 15.3% compared to $387.2 million for the fiscal year ended September
30, 2021. We recorded net loss of $310.8 million for the fiscal year ended September 30, 2022, a change of 777.2% compared to net income of $45.9
million recorded for the fiscal year ended September 30. 2021. The financial information included herein may not necessarily reflect our results of
operations in the future.
History and Corporate Information
On October 1, 2019 (“Distribution Date”), Nuance, a leading provider of speech and language solutions for businesses and consumers around the
world, completed the legal and structural separation and distribution to its stockholders of all of the outstanding shares of our common stock, and its
consolidated subsidiaries, in a tax free spin-off (“Spin-Off”). The distribution was made in the amount of one share of our common stock for every eight
shares of Nuance common stock (“Distribution”) owned by Nuance’s stockholders as of 5:00 p.m. Eastern Time on September 17, 2019, the record date of
the Distribution.
In connection with the Distribution, on September 30, 2019, we filed an Amended and Restated Certificate of Incorporation, or the Charter, with the
Secretary of State of the State of Delaware, which became effective on October 1, 2019. Our Amended and Restated By-laws also became effective on
October 1, 2019. On October 2, 2019, our common stock began regular-way trading on the Nasdaq Global Select Market under the ticker symbol CRNC.
Our principal executive offices are located at 1 Burlington Woods Drive, Suite 301A, Burlington, Massachusetts 01803 and our telephone number at
that address is (857) 362-7300. Our website is www.cerence.com. We are not including the information contained in our website as part of, or incorporating
it by reference into, this Form 10-K. We make available free of charge through our website our annual reports on Form 10-K, quarterly reports on Form 10-
Q, current reports on Form 8-K and amendments to these reports, as soon as reasonably practicable after we electronically file these materials with, or
otherwise furnish them to, the Securities and Exchange Commission, or the SEC. The SEC maintains a website (www.sec.gov) that contains reports, proxy
and information statements, and other information regarding issuers that file electronically with the SEC.
We webcast our earnings calls and certain events we participate in or host with members of the investment community on the investor relations page
of our website (www.cerence.com/investors/overview). Additionally, we provide notifications of news or announcements regarding our financial
performance, investor events, and press and earnings releases as part of our investor relations website. We intend to use our investor relations website as a
means of disclosing material non-public information and for complying with our disclosure obligations under Regulation FD. The information contained in
our website is not included as part of, or incorporated by reference into, this Form 10-K or in any other document we file with the SEC, and any references
to our website are intended to be inactive textual references only.
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Our Capabilities
Our mission is to empower the transportation ecosystem with digital platform solutions for connected and autonomous vehicles. We deliver
automotive cognitive assistance solutions that are conversational and intuitive and that enable OEMs to strengthen the emotional connection with their end
users through a distinct, consistent, branded experience. We continue to extend these solutions to two-wheel vehicles and tractors and other transportation
means. Our principal offering is our software platform, which our customers use to build virtual assistants that can communicate, find information and take
action across an expanding variety of categories, including navigation, control, media, communication, information and tools. Our software, developed in
deep partnership with the automotive industry, improves the mobility experience for drivers and passengers all over the world.
User engagement with virtual assistants built with our software platform typically begins with a voice request. Upon receiving such an input, our
software platform determines what the user has said, infers user intent, and maps the request to the most applicable category and domain. Depending on the
applicable domain, our software platform determines whether to respond directly or access an external data source or third-party virtual assistant, in all
cases resulting in a response including spoken words or taking action. Depending on the complexity of the request and other factors, engagement may
consist of multiple rapid voice interactions with the user and may combine assistance in multiple domains.
Our software platform offers a hybrid architecture combining edge software components, which are embedded in a vehicle’s head unit and integrated
with onboard systems, with cloud-connected components, which access data and content on external networks and support over-the-air updates. This hybrid
architecture enables our software platform to combine the performance, reliability, efficiency, security and tight vehicular integration of embedded software
with the flexibility that cloud connectivity provides. Response frameworks can generally be customized such that requests are processed first at the edge,
controlling cloud transmission costs, or in parallel at the edge and in the cloud, to achieve higher confidence responses with low latency. Through edge
computing capabilities, the platform is able to provide certain features, such as wake up words, while avoiding privacy and latency issues associated with
always-listening cloud-connected technologies. Our software platform includes a common programming framework including toolkits and applications for
its edge and cloud-connected components, and our customers can choose the software components that are necessary to power the experiences that they
want to build and offer.
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Cerence Platform Framework - Hybrid Architecture
We deliver our software platform through our professional services organization, which works with OEMs and suppliers to tailor it to the desired
requirements, configurations and acoustic characteristics of specific vehicle models. For an initial implementation, our professional services engagements
typically begin with the porting of our key technologies to the customer’s specific hardware and software platforms and the development of specific
dialogues and grammar libraries. Our professional services teams also work with OEMs on acoustic optimization of a system and application of our audio
signal processing technologies. Following an initial implementation, our professional services organization may continue to provide services over the
course of a head unit program and vehicle model lifecycle through maintenance and enhancement engagements.
Edge Software Components
Our software platform’s edge software components are installed on a vehicle’s head unit and can operate without access to external networks and
information. We tailor our edge software components to a customer’s desired use cases and a vehicle model’s unique systems, sensors and data interfaces.
Capabilities of our edge software components include automatic speech recognition, natural language understanding, noise cancellation, driver and
passenger voice isolation, voice biometrics, wake-up word and text-to-speech synthesis, as well as certain non-speech technologies such as gaze, gesture
and touch input. Our software can support more than 70 languages and dialects. Edge deployment suits these technologies as it provides the following
functionality and benefits:
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Performance. Processing at the edge is often necessary to meet the low latency requirements of natural conversation.
Vehicle Systems Integration. Vehicle applications, sensors, and data interfaces can be integrated deeply with embedded systems.
Availability. Edge-located systems are available regardless of cellular coverage and network connectivity.
Reduced cost. Processing at the edge reduces or eliminates cellular data transmission costs.
Privacy. Users’ utterances and system outputs processed at the edge remain onboard and can immediately be purged.
Certain forms of assistant speech invocation can only be implemented using edge software. The use of wake-up words like “Hey BMW” and “Ni hao
Banma” require constant listening and signal processing to identify instances when a virtual assistant should activate and respond. The same requirements
apply to our JustTalk technology, which constantly listens to spoken conversation, determines speaker intent, and invokes assistance appropriately without
requiring a specific invocation phase. The alternative of sending a constant stream of audio from the car interior to the cloud for processing would require
enormous amounts of bandwidth and potentially create privacy concerns.
We typically sell our edge software components under a traditional per unit perpetual software license model, in which a per unit fee is charged for
each software instance installed on an automotive head unit. Our customers generally provide estimates of the
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units to be shipped for a particular program, and we review third-party market studies and work with our customers to refine and understand these
projections. While these projections provide us with some reasonable visibility into future revenue, the number of units to be shipped for a particular
program is not committed upfront.
Cloud-Connected Components
Our software platform’s cloud-connected components are comprised of certain speech and natural language understanding related technologies, AI-
enabled personalization and context-based response frameworks, and content integration platforms. Our cloud-connected speech-related technologies
perform many of the same tasks as our speech-related edge components while offering enhanced functionality through increased computational power and
access to external content. Cloud-connected components also support the replication of personalized settings such as voice profiles and preferences across
multiple vehicles.
We offer cloud-connected components in the form of a connected service to the vehicle end user. Initial subscriptions typically have multi-year terms
from the time of a vehicle’s sale and are paid in advance by the OEM or supplier. Renewal options vary and are managed by our customers on behalf of
vehicle end users.
Virtual Assistant Coexistence
The wide variety of use cases encompassed by automotive cognitive assistance, in the context of evolving consumer preferences, necessitates the
coexistence of multiple virtual assistants within the in-vehicle environment. For example, many vehicle-related categories such as navigation and control
can best be addressed by a tightly integrated, vehicle-model-specific virtual assistant. At the same time, drivers and passengers often prefer to use familiar
Internet-based virtual assistants for more general domains such as entertainment.
To enable drivers and passengers to extend their digital life from outside the vehicle to inside the vehicle, our software platform can support the
integration of third-party virtual assistants, providing a uniform interface for virtual assistant engagement. We have invested in our platform to develop the
technology and capabilities necessary to integrate third party virtual assistants with vehicles’ systems.
To make integration as seamless as possible, we have built cognitive arbitration technology that is capable of inferring user intent, determining
which within a set of virtual assistants would be best suited to address a request, and sending the request to the selected assistant thus enabling users to
extend their digital life into the automobile. Depending on a system’s configuration and the virtual assistants to which it is connected, output can be
presented back to the user through a vehicle-specific personality or through the virtual assistant’s own interface. Cognitive arbitration represents an
important control point with respect to the mobility experience and an important brand differentiation opportunity for OEMs and suppliers. Like the rest of
our software platform, cognitive arbitration is a white label product that can be customized and branded.
Along with providing OEMs control over their brand identity, our cognitive arbitration technology is an important element in letting an OEM design
the overall driver and passenger experience. This technology allows an OEM to dictate interactions with third-party virtual assistants within the vehicle,
strengthening its ability to differentiate and control the overall in-vehicle experience.
Professional Services
We have a large professional services team that works with our customers in the design, development and deployment phases of a vehicle head unit
program and vehicle model lifecycle, as well as in maintenance and enhancement engagements. Our range of capabilities include personalization of
grammar and natural language understanding development, localization, language selection and system coverage, navigation speech data generation,
system prompt recordings, porting our platform’s framework and our ability to deploy cognitive arbitration technologies, and user experience reviews and
studies. Our professional services team is globally distributed to serve our customers in their primary design and production jurisdictions. We typically
charge manufacturers for our design and consulting work, which are primarily project-based, in line with customary non-recurring engineering industry
practices.
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Our Competitive Strengths
Our key competitive strengths include:
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Industry-leading speech-related technology. Our research shows that consumers see speech as an increasingly attractive medium for human-
vehicle interaction. Nevertheless, they are often frustrated with speech recognition solutions that misunderstand spoken language or require
users to speak rigid, pre-defined commands associated with a limited set of functions. Developing conversation-based automotive virtual
assistants that users will perceive as natural is challenging as a matter of artificial intelligence technology, acoustic engineering and user
interface design. We believe our software platform, as tailored for a specific vehicle model by our professional services organization, represents
one of the most technologically advanced and highest-performing human-vehicle speech interaction systems available today. In tests performed
by our customers to assess correct recognition of words, sentences, and domains, our solutions have achieved some of the highest marks
relative to competitors and our offerings are backed by our portfolio of patents and associated rights.
Hybrid edge-cloud system architecture. Our software platform’s hybrid architecture combines the performance, reliability and tight integration
that only edge software can provide with the flexibility of cloud connectivity. Cloud-reliant solutions with which our software platform
competes cannot match edge software’s low latency, its bandwidth efficiency or its availability in the absence of network connectivity.
Moreover, emerging speech invocation paradigms such as wake up words and situationally aware invocation are most effectively implemented
using edge technology.
Bespoke vehicle integration and acoustic tuning. Cognitive assistance for categories such as navigation, entertainment and control requires
tight integration with onboard vehicle components, which vary widely among vehicle models. Separately, speech interaction systems can be
significantly hampered by the noisy environment of a vehicle cabin and must be tuned for particular acoustics and audio system components.
To achieve the tight vehicle integration necessary to address these concerns, our professional services team works closely with OEMs and
suppliers to customize our offerings for the particular characteristics of specific vehicle models. Our expertise in acoustics enables us to
implement systems that can isolate the voices of individual speakers and support simultaneous virtual assistance for speakers in multiple zones,
representing a key point of differentiation.
Interoperability with third-party Internet-based virtual assistants. Virtual assistants from large technology companies have become popular
with consumers. We believe that consumers want to extend the use of these assistants while traveling in their vehicles and that a comprehensive
automotive cognitive assistance system requires the coexistence of multiple virtual assistants. To accommodate their end user preferences while
still providing a unique and brand-specific experience, OEMs seek to offer a common in-vehicle interface with seamless integration across
various virtual assistants. To this end, our software platform can support the coexistence of multiple third-party virtual assistants and provide a
uniform interface for virtual assistant engagement. Our market-leading position, our focus on the automotive market and the large size of our
installed base create incentives for third party virtual assistant providers to work with us and support this integration.
Independence from large technology companies and automobile industry players. As vehicles become more autonomous, mobility
experiences are being increasingly defined by in-cabin features and alternative forms of human-vehicle engagement. Branded, differentiated
automotive cognitive assistance is thus increasingly important to OEMs’ brand value. As a neutral, independent, white-label software platform
vendor, we empower our customers to build branded and differentiated experiences and retain ownership of, or rights to, their system design
and data. The virtual assistant coexistence enabled by our cognitive arbitration functionality is designed to allow our customers to provide
access to third-party virtual assistants without ceding overall control of the cognitive assistance experience.
OEM alignment. The design and development of the head unit within the vehicle ecosystem is a complex process requiring tight integration of
the software and hardware components used in and with the vehicle. We believe our demonstrated long-standing capabilities in working closely
with OEMs, understanding their needs, product roadmaps and global go-to-market strategies enables us to innovate our technologies to meet an
OEM’s specifications. Furthermore, our working relationships with OEMs uniquely allow us to market and sell our solutions on both a local
and global basis in accordance with an OEM’s particular requirements.
Broad language coverage. Our software platform supports over 70 languages and dialects, far more than any of our competitors. As a result of
our broad language support, our customers are already delivering cognitive assistance based on our software platform across the Americas,
Europe and Asia, including China, the U.S. and all other large automotive markets. Our language support also enables multi-lingual capabilities
for domains such as music selection, point-of-interest selection, and cross-border navigation among others, representing a critical feature for
markets such as Continental Europe in which automobiles may routinely traverse multiple lingual zones. We believe that our portfolio of
languages and multi-lingual capabilities represent an important competitive advantage, as the development of capabilities to support a new
language is expensive and time-consuming.
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Broad, global network of deep relationships with OEMs and tier 1 suppliers. We have supplied speech recognition systems to OEMs and
suppliers for over 20 years, working closely with our customers through our global professional services organization to design and integrate
our solutions into their brands. Today, we work with all major OEMs or their tier 1 suppliers worldwide, leveraging the geographic breadth and
industry experience of our professional services teams. Our long history in the automotive industry and the global reach and experience of our
over 500 professional services employees across 12 countries gives us credibility with OEMs as we seek new business with OEMs, either
directly or through their tier 1 suppliers. We believe that OEMs who sell globally will value our experience in servicing and deploying
solutions on a global basis. We often have master agreements or similar commercial arrangements with our customers. These master
agreements help us retain customer relationships over the long term.
Our Growth Strategies
We believe our growth opportunity has three key facets: continued investment in expanding our core technology, development of new applications
that extend our core technology into innovative applications, and expansion of our target market beyond automobiles. Successful execution of these key
objectives could lead to the greater penetration of our offerings and key enabling technologies throughout our target markets, resulting in an increase in the
revenue we are able to capture per vehicle and expansion of our market share relative to competitors.
Our primary strategies for pursuing our growth include the following:
• Maintain and extend product leadership. We intend to continue investing in developing our core product functionality and expanding the
breadth of categories and domains our software platform is able to address, particularly with a view toward maintaining our market share in
edge software components and growing our share in cloud-connected software functionalities. Our existing relationship with, and our
proximity in the design process to, OEMs provides us with insight into the needs of the end-users and roadmaps for innovation. For instance,
this insight has helped us identify and advance our technologies for autonomous driving systems, which technologies have been incorporated in
solutions currently under development. Additionally, we intend to continue to invest in customizing and supporting our solutions for specific
individual automobile vehicle models, resulting in tight integration of our solutions. We believe that increasing complexity of our edge
software components, including with respect to multi-modal interaction, and growth in our cloud-connected product areas, including the
enabling of third-party services, will enable us to increase the revenue per vehicle that we are
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able to generate. Additionally, we believe that these investments will help maintain our position with existing customers through new vehicle
models and enable us to grow with the overall market for automotive cognitive assistance.
Continue to invest in interoperability with third-party virtual assistants. We believe that the growing popularity of third-party virtual
assistants is creating increasing demand for access to these assistants as part of the mobility experience. We also believe that complete
automotive cognitive assistance requires the coexistence of multiple virtual assistants. We intend to continue to invest to develop our software
platform’s interoperability with third-party virtual assistants and its cognitive arbitration capabilities to maintain its position as a neutral
automotive cognitive assistance platform. We believe a neutral automotive cognitive assistance platform will increasingly be valued by OEMs
that prioritize maintaining their unique and branded in-car experience and the ability to control the mobility experience overall.
Deliver new functionality to existing installed base. Our solutions have been installed in more than 450 million vehicles to date. Our large
installed base represents an opportunity to deliver new features and software. Depending on system capabilities, we are able to deliver updated
functionality to our users in the form of embedded software upgrades performed by dealers and over-the-air updates delivered from the cloud.
Develop products that leverage our expertise in new applications. We have developed new products that leverage our expertise in voice-AI
into new applications that will be distinct from our Edge or Cloud-connected product offerings. These new applications are expected to
generate revenue using either a subscription or transaction-based model extending the company’s market opportunity into new areas. New
applications developed include Cerence Tour Guide, Cerence Pay and Car Life. Cerence Tour Guide is an AI-powered application for
automotive assistants that brings guided tour content directly into the car via an ecosystem of partners. Cerence Pay offers a secure, contactless
payment experience for drivers via voice and facial biometrics. Cerence Car Life is a suite of AI-powered, software-as-a-service (SaaS)
offerings that provides drivers with up-to-date information about their cars via a companion application, voice output from the automotive
assistant, and imagery displayed on the car’s infotainment system.
Expand into adjacent transportation markets. Today, we primarily target the automobile market. However, our products and technology also
have application to other modes of transportation. Any types of vehicles that move people are potential applications for our technology. We
have integrated our technologies and solutions within the two-wheel vehicle market and have explored opportunities in the cruise line, public
transit, fleet, and elevator markets. In total, we believe these adjacent markets represent an important growth opportunity.
Competition
The automobile cognitive assistance market is competitive. Today, we face two primary sets of competitors:
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Large technology companies. Many large technology companies, including Amazon, Apple, Google, Microsoft, Alibaba, Baidu and Tencent,
offer Internet-based virtual assistants. Given the popularity in general of these virtual assistants, we believe that automobile drivers and riders
increasingly desire the ability to use them as part of the mobility experience. To meet this demand, some of these companies have invested in
technologies, such as Apple CarPlay, to make their virtual assistants more accessible within vehicle cabins.
While these third-party virtual assistants directly compete with some of the functionality we provide as part of our software platform, they also
increase the need for our software platform in two ways. First, given the fragmented and competitive nature of the virtual assistant market, it is
important for OEMs and suppliers to enable their passengers to utilize a variety of virtual assistants. Our software platform’s cognitive
arbitration functionality can, dependent on appropriate third-party agreements, enable OEMs and suppliers to provide access to multiple third-
party virtual assistants through a consistent, branded interface. Second, the noisy environment of a vehicle cabin presents significant speech
processing challenges for smartphone-based third-party virtual assistants that are not designed for a specific vehicle model. Our software
platform integrates with third-party virtual assistants and improves their functionality by improving the quality of speech input.
Small, focused competitors. We compete for business directly with certain companies focused on voice-based virtual assistance, including
SoundHound in the U.S., iFlyTek in China, and other regional and technology-focused competitors. These companies have had some success
selling into our customer base. However, we believe that we have multiple meaningful competitive advantages, including our scale, our
globally distributed team, our best-in-class portfolio of compatible languages, and our deep experience and focus on the automotive market. We
also believe that our technology, particularly our speech signal enhancement and acoustic tuning, is superior based on benchmarking results
against our competitors. We believe we will continue to be able to compete successfully against these competitors as we continue to invest in
our offerings.
Our industry has attracted, and may continue to attract, new entrants. Although we find that OEMs often prefer to maintain relationships with
suppliers that have a proven record of performance, they also rigorously reevaluate suppliers on the basis
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of product quality, price, reliability and timeliness of delivery, product design capability, technical expertise and development capability, new
product innovation, financial viability, operational flexibility, customer service and overall management.
Technology
Our software platform’s edge and cloud-connected software components are based on a number of proprietary technologies. We customize these
technologies for specific vehicle models and continuously update and improve our features and functionality. Our key technologies include but are not
limited to the following:
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Speech Signal Enhancement. A high-quality voice input signal is a precondition to reliable speech recognition and cognitive assistance.
However, in a typical vehicle cabin, ambient interior sounds and noise from around the vehicle mix with infotainment system output and
conversations between passengers, create a complex soundscape that can obscure virtual assistant requests. Audio signal processing
technologies are therefore critical to the cognitive assistance experience. We have been developing and combining highly advanced audio
signal enhancement technologies for over 20 years, and we tune our software in relation to the placement of microphones in a vehicle to create
defined acoustic zones and support the isolation of individual speakers. Our technologies deliver best-in-class speech recognition results, as
evidenced by tests performed by our customers to assess correct recognition of words, sentences, and domains, in which our solutions have
achieved some of the highest marks relative to competitors.
Automatic Speech Recognition. Our speech recognition technology, built using neural networks and specifically designed for automotive
applications, is recognized as the automotive industry leader in automatic speech recognition. We support over 70 languages and dialects,
representing the largest language portfolios in the speech industry. Key features of our speech recognition technology include free-form
conversational interpretation, as opposed to a rigid system of predefined commands, and barge-in capabilities, enabling users to correct and
modify their requests in the middle of stating them.
Natural Language Understanding. Once speech has been captured and accurately converted into words, natural language understanding
technology, or NLU, is necessary to match the request to the appropriate category and domain to interpret the user’s intent. Our NLU system
applies artificial intelligence reasoning, including predefined and learned preferences and real-time contextual information, to deliver
informative responses consistent with what a user desires. NLU processing is performed by a hybrid of edge and cloud-connected software
components to optimize performance, efficiency, reliability and security.
Vocalizer: Text-to-Speech and Natural Language Generation. In many cases, the most useful result of a spoken query or command is a
spoken response back to the user. To enable cognitive assistants to speak, we offer text-to-speech technology in more than 65 languages and
dialects and over 145 distinct voices. We also have developed the technology to read text using human-like inflection and emotion, as well as,
offer custom voices for customers who wish to differentiate themselves through an exclusive personality representing their brand.
Voice Biometrics. Our software platform includes biometric functionality which can authenticate and personalize the automotive experience by
recognizing users based on their voice and automatically load individual preferences and other automotive settings.
Push-to-Talk, Wake-Up Words and Just Talk. Through our software platform, we are capable of offering three methods for invoking the
virtual assistant, which can be implemented alone or in combination:
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Push-to-Talk functionality, most commonly implemented as a button on the steering wheel or center console.
Wake-Up Word functionality, involving a spoken keyword or phrase, such as “Hey BMW.”
Just Talk. Our active listening technology, filters out background noise and irrelevant conversation until it hears a keyword, phrase, or
command that it understands as related to an applicable domain and which is intended as a virtual assistant request. False triggers are
minimized through sophisticated syntax, cadence and intonation analysis performed in real-time and can be further reduced using
automobile sensors such as head or body movement trackers.
Cognitive Arbitration. Our cognitive arbitration technology can route arbitrary requests to the most appropriate virtual assistant or bot,
including third-party virtual assistants.
Non-Speech, Multimodal Input. Our technology seeks to mimic conversational human interaction by incorporating input methods beyond
speech. Our multimodal capabilities allow vehicle systems to accept multiple forms of input such as voice, gestures, gaze, predictive text and
handwriting.
• Multi-Seat Intelligence. Due to its flexible design, our speech signal enhancement technology can be easily configured for complex multi-zone
scenarios with various users and nearly arbitrary microphone configurations. Dedicated processing
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modes enable efficient and robust multi-user speech recognition in challenging acoustical environments. This allows for passenger interaction
in individual zones like sharing music or interacting simultaneously with the car or infotainment systems, where some passengers can enjoy
browsing their music by speech, while others can send emails or other work-related activities.
Research and Development
We maintain technical engineering centers in major regions of the world that help develop our software platform and its underlying components and
provide our customers with local engineering capabilities and design development.
We employ approximately 900 research and development personnel around the world, including scientists, engineers and technicians. Our total
research and development expenses were approximately $107.1 million, $112.1 million and $88.9 million for fiscal years 2022, 2021 and 2020,
respectively.
We believe that continued investment in research and development will be critical for us to continue to deliver market-leading solutions for
automotive cognitive assistance. Accordingly, we intend to continue to invest in our product portfolio and allocate capital and resources to our growth
opportunities.
Customers
Our customers include all major OEMs or their tier 1 suppliers worldwide. Our automobile manufacturer customers, commonly referred to as
OEMs, include BMW, XPeng, FCA Group, Ford, Daimler, Geely, Renault-Nissan, SAIC, Toyota, Volkswagen Group and many others and represented
approximately 51% of our sales in fiscal year 2022. Our tier 1 supplier customers, who typically sell automobile components to the OEMs, include Aptiv,
Bosch, Continental, DENSO TEN, NIO, Harman and many others and represented approximately 49% of our business in fiscal year 2022.
Our revenue base is geographically diverse. In fiscal 2022, approximately 31%, 27% and 42% of our revenue came from the Americas, Europe and
Asia, respectively.
Sales and Marketing and Professional Services
We market our offerings using a high-touch OEM solutions model. We sell directly to our customers, which include OEMs and suppliers and as
described above under “Customers”, and for each of our customers we assign a team comprising sales and marketing as well as professional services
personnel. Our customer contracts are bespoke and vary widely, but generally represent multi-year agreements providing visibility into future revenue and
helping to support retention of customer relationships over the long term.
Our sales and marketing team includes approximately 100 employees. This team includes sales representatives, account managers, sales engineers,
product managers and marketing experts. As we sell our offerings to all major OEMs or their tier 1 suppliers today, our sales strategy is primarily focused
on leveraging our existing customer relationships. Account managers typically have longstanding relationships with specific customers and are distributed
worldwide to provide local customer coverage. We oftentimes utilize customer-specific demo days and proof-of-concepts (“POCs”) in which we showcase
our technology and capabilities to OEMs and tier 1 suppliers on an individual basis. These events help maintain our market presence and awareness of our
platform’s offerings while also providing opportunities to solicit feedback and input from our customers on our roadmap and future technologies.
Our professional services organization includes approximately 500 employees. These employees work with our customers in the design phase of the
vehicle lifecycle to tailor our platform for specific requirements such as branding and also tune the software for the characteristics of a vehicle model. Our
professional services team also provides post-design phase services through maintenance engagements, particular with respect to our cloud-connected
solutions. The tight integration of our platform into our customers’ design process and their vehicles supports our ability to win future business with those
customers. Like our sales representatives, our professional services employees often have longstanding relationships with specific customers and are
distributed worldwide to provide local customer coverage.
Human Capital
Summary
As of September 30, 2022, we had approximately 1,700 full-time employees, including approximately 100 in sales and marketing, approximately
200 in administrative functions, approximately 500 in professional services, and approximately 900 in research and development. Approximately 90% of
our employees are based outside of the United States. None of our employees in the United States are represented by a labor union; however many of our
employees in Europe are represented by workers councils or labor unions. To date, we have experienced no work stoppages and believe that we have a
good relationship with our employees.
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Culture and Work Environment
We’re a group of highly motivated collaborators who share a common passion for creating meaningful change in our industry and shaping the future
of mobility. We are committed to attracting and retaining the best and brightest talent and building a culture of transparency, trust, and respect.
We are proactively nurturing our culture by investing in our people, processes and professional development. We understand our people are critical
for our continued success and are focused on helping our employees grow at every stage of their career. We have education opportunities and training and
development programs that help to enrich the knowledge and talents across the organization. From wellbeing programs and holiday celebrations to our
virtual book club and LBGTQ alliance, we’re focused on maintaining our connections regardless of our physical locations.
Compensation, Rewards and Benefits
In addition to competitive base salaries, we provide incentive-based compensation programs to reward performance relative to key metrics. We also
provide compensation in the form of restricted stock unit grants as well as a competitive time-off policy. We offer comprehensive benefit options, including
retirement savings plans, medical insurance, dental insurance, vision insurance, life and disability insurance, health savings accounts, flexible spending
accounts, and an employee stock purchase plan, among others.
Diversity and Inclusion
We are a global team that seeks to build a diverse and inclusive workplace built upon the different perspectives, beliefs, and backgrounds of our
people. We embrace what makes us each unique. Strengthening diversity enables us to bring our collective ideas together to make the best decisions for the
global community we serve. We have successfully launched affinity groups for Diversity and Inclusion, Women in Technology, and Working Parents, as
well as our Book Club. We celebrated important cultural observances such as Black History Month, Women’s History Month, and Pride Month. It’s
extremely important that every employee feel welcome and valued as we strive to make our company a great place to work.
Intellectual Property
We own approximately 989 patents and patent applications and other intellectual property. Prior to our Spin-Off from Nuance, we entered into an
Intellectual Property Agreement, which provides us with certain non-exclusive rights with respect to patents that will continue to be held by Nuance. While
no individual patent or group of patents, taken alone, is considered material to our business, in the aggregate, these patents and rights provide meaningful
protection for our products, technologies, and technical innovations.
Item 1A. Risk Factors.
You should carefully consider all of the information in this Form 10-K and each of the risks described below, which we believe are the material risks
that we face. Some of the risks relate to our business, others to our intellectual property and technology, and the consequences of the Spin-Off. Some risks
relate to the securities markets, our indebtedness and ownership of our securities. Any of the following risks could materially and adversely affect our
business, financial condition and results of operations and the actual outcome of matters as to which forward-looking statements are made in this Form 10-
K.
Risks Relating to Our Business
The market in which we operate is highly competitive and rapidly changing and we may be unable to compete successfully.
There are a number of companies that develop or may develop products that compete in the automotive voice assistance market. The market for our
products and services is characterized by intense competition, evolving industry and regulatory standards, emerging business and distribution models,
disruptive software technology developments, short product and service life cycles, price sensitivity on the part of customers, and frequent new product
introductions, including alternatives for certain of our products that offer limited functionality at significantly lower costs or free of charge. In addition,
some of our competitors have business objectives that may drive them to sell their alternative offerings at a significant discount to our offerings in the
automotive voice assistant market. Current and potential competitors have established, or may establish, cooperative relationships among themselves or
with third parties to increase the ability of their technologies to address the needs of our prospective customers. Furthermore, existing or prospective
customers may decide to develop competing products or have established, or may in the future establish, strategic relationships with our competitors. We
also face significant competition with respect to cloud-based solutions in the automotive cognitive assistance market where existing and new competitors
may have or have already established significant market share and product offerings.
The competition in the automotive cognitive assistance market could adversely affect our operating results by reducing the volume of the products
and solutions we license or sell or the prices we can charge. Some of our current or potential competitors are large technology companies that have
significantly greater financial, technical and marketing resources than we do, and others are smaller specialized companies that possess automotive
expertise or regional focus and may have greater price flexibility than we do.
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These competitors may be able to respond more rapidly than we can to new or emerging technologies or changes in customer requirements, or may decide
to offer products at low or unsustainable cost to win new business. They may also devote greater resources to the development, promotion and sale of their
products than we do, and in certain cases may be able to include or combine their competitive products or technologies with other of their products or
technologies in a manner whereby the competitive functionality is available at lower cost or free of charge within the larger offering. To the extent they do
so, penetration of our products, and therefore our revenue, may be adversely affected. Our large competitors may also have greater access to data, including
customer data, which provides them with a competitive advantage in developing new products and technologies. Our success depends substantially upon
our ability to enhance our products and technologies, to develop and introduce, on a timely and cost-effective basis, new products and features that meet
changing customer requirements and incorporate technological enhancements, and to maintain our alignment with the OEMs, their technology and market
strategies. If we are unable to develop new products and enhance functionalities or technologies to adapt to these changes and maintain our alignment with
OEMs, our business will suffer.
Adverse conditions in the automotive industry or the global economy more generally could have adverse effects on our results of operations.
Our business depends on, and is directly affected by, the global automobile industry. Automotive production and sales are highly cyclical and
depend on general economic conditions and other factors, including consumer spending and preferences, changes in interest rate levels and credit
availability, consumer confidence, fuel costs, fuel availability, environmental impact, governmental incentives and regulatory requirements, and political
volatility, especially in energy-producing countries and growth markets. Such factors may also negatively impact consumer demand for automobiles that
include features such as our products. In addition, automotive production and sales can be affected by our customers’ ability to continue operating in
response to challenging economic conditions, and in response to labor relations issues, regulatory requirements, trade agreements and other factors. The
volume of global automotive production has fluctuated, sometimes significantly, from year to year, and such fluctuations give rise to fluctuations in the
demand for our products. Moreover, the automotive industry has recently experienced, and may continue to experience, a semiconductor shortage, which
has negatively impacted the production of new vehicles. Any significant adverse change in any of these factors, including, but not limited to, general
economic conditions and the resulting bankruptcy of a customer, the closure of a customer manufacturing facility or the ability of a customer manufacturing
facility to obtain supplies to manufacture automobiles and to ship or receive shipments of parts, supplies or finished product, may result in a reduction in
automotive sales and production by our customers, and could have a material adverse effect on our business, results of operations and financial condition.
In recent months, we have observed increased economic uncertainty in the United States and abroad. Impacts of such economic weakness include:
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falling overall demand for goods and services, leading to reduced profitability;
reduced credit availability;
higher borrowing costs;
reduced liquidity;
volatility in credit, equity and foreign exchange markets; and
bankruptcies.
These developments, along with continued uncertainty about economic stability related to the global outbreak of COVID-19 and more recently the
Russian invasion of Ukraine, have resulted in supply chain disruption, inflation, higher interest rates, fluctuations in currency exchange rates, and
uncertainty about business continuity, which may adversely affect our business and our results of operations. As our customers react to global economic
conditions and the potential for a global recession, we may see them reduce spending on our products and take additional precautionary measures to limit or
delay expenditures and preserve capital and liquidity. Reductions in spending on our solutions, delays in automobile production or purchasing decisions,
lack of renewals or the inability to attract new customers, as well as pressure for extended billing terms or pricing discounts, would limit our ability to grow
our business and negatively affect our operating results and financial condition.
Pandemics or disease outbreaks, such as COVID-19, have disrupted, and may continue to disrupt, our business, which could adversely affect our
financial performance.
Our business depends on, and is directly affected by, the output and sales of the global automotive industry and the use of automobiles by
consumers. Pandemics or disease outbreaks, such as COVID-19, have disrupted, and may continue to disrupt, global automotive industry customer sales
and production volumes. Vehicle production initially decreased significantly in China, which was first affected by COVID-19, then Europe and also the
United States. Subsequent events resulted in the shutdown of manufacturing operations in China, Europe and the United States, and even though
manufacturing operations have resumed, the capacity of such
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global manufacturing operations remains uncertain. More recently, we have seen, and anticipate that we will continue to see, supply chain challenges in the
automotive industry related to semiconductor devices that are used in automobiles. As a result, we have experienced, and may continue to experience,
difficulties in entering into new contracts with our customers, a decline in revenues resulting from the decrease in the production and sale of automobiles by
our customers, the use of automobiles, increased difficulties in collecting payment obligations from our customers and the possibility customers will stall or
not continue existing projects. These all may be further exacerbated by the global economic downturn resulting from the pandemic which could further
decrease consumer demand for vehicles or result in the financial distress of one or more of our customers.
As the COVID-19 pandemic continues, given the elevated number of COVID-19 cases throughout the world as a result of the highly transmissible
Delta and Omicron variants, our business operations could be further disrupted or delayed. The pandemic has already resulted in, and may continue to
result in, work stoppages, slowdowns and delays, travel restrictions, and other factors that cause a decrease in the production and sale of automobiles by our
customers. The production of automobiles with our products has been and may continue to be adversely affected with production delays and our ability to
provide engineering support and implement design changes for customers may be impacted by restrictions on travel and quarantine policies put in place by
businesses and governments.
The full extent to which the ongoing COVID-19 pandemic adversely affects our financial performance will depend on future developments, many of
which are outside of our control, are highly uncertain and cannot be predicted, including, but not limited to, the duration and spread of COVID-19,
including variants such as Delta and Omicron, its severity, the effectiveness of actions to treat or contain the virus and its impact and how quickly and to
what extent normal economic and operating conditions can resume. The COVID-19 pandemic could also result in additional governmental restrictions and
regulations, which could adversely affect our business and financial results. In addition, a recession, depression or other sustained adverse market impact
resulting from or related to COVID-19 could materially and adversely affect our business, our access to needed capital and liquidity, and the value of our
common stock. Even after the COVID-19 pandemic has lessened or subsided, we may continue to experience adverse impacts on our business and financial
performance as a result of its global economic impact.
Our strategy to increase cloud connected services may adversely affect our near-term revenue growth and results of operations.
Our leadership position has historically been derived from our products and services based on edge software technology. We have been and are
continuing to develop new products and services that incorporate cloud-connected components. The design and development of new cloud-connected
components will involve significant expense. Our research and development costs have greatly increased in recent years and, together with certain expenses
associated with delivering our connected services, are projected to continue to escalate in the near future. We may encounter difficulties with designing,
developing and releasing new cloud-connected components, as well as integrating these components with our existing hybrid technologies. These
development issues may further increase costs and may affect our ability to innovate in a manner demanded by the market. As a result, our strategy to
incorporate more cloud-connected components may adversely affect our revenue growth and results of operations.
Pricing pressures from our customers may adversely affect our business.
We may experience pricing pressure from our customers in the future, which could result from the strong purchasing power of major OEMs. As a
developer of automotive cognitive assistance components, we may be expected to quote fixed prices or be forced to accept prices with annual price
reduction commitments for long-term sales arrangements or discounted reimbursements for our work. We may encounter customers unwilling to accept the
terms of our software license or non-recurring engineering agreements. Any price reductions could impact our sales and profit margins. Our future
profitability will depend upon, among other things, our ability to continuously reduce the costs for our components and maintain our cost structure. Our
profitability is also influenced by our success in designing and marketing technological improvements in automotive cognitive assistance systems. If we are
unable to offset any price reductions in the future, our business, results of operations and financial condition would be adversely affected.
We invest effort and money seeking OEMs’ validation of our technology, and there can be no assurance that we will win or be able to renew service
contracts, which could adversely affect our future business, results of operations and financial condition.
We invest effort and money from the time an OEM or a tier 1 supplier begins designing for an upcoming program to the date on which the customer
chooses our technology to be incorporated directly or indirectly into one or more specific vehicle models to be produced by the customer. This selection
process is known as a “design win.” We could expend our resources without success. After a design win, it is typically quite difficult for a product or
technology that did not receive the design win to displace the winner until the customer begins a new selection process because it is very unlikely that a
customer will change complex technology until a vehicle model is revamped. In addition, the company with the winning design may have an advantage
with the customer going forward because of the established relationship between the winning company and such customer, which could make it more
difficult for such company’s competitors to win the designs for other service contracts. Even if we have an established relationship with a customer, any
failure to perform under a service contract or innovate in response to their feedback may neutralize our advantage with that customer.
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If we fail to win a significant number of customer design competitions in the future or to renew a significant number of existing service contracts, our
business, results of operations and financial condition would be adversely affected. Moreover, due to the evolution of our connected offerings and
architecture, trending away from providing legacy infotainment and connected services and a change in our professional services pricing strategies, we
expect our deferred revenue balances to decrease in the future, including due to a wind-down of a legacy connected service relationship with a major OEM,
since the majority of the cash from the contract has been collected. To the extent we are unable to renew existing service contracts, such decrease could
intensify. The period of time from winning a contract to implementation is long and we are subject to the risks of cancellation or postponement of the
contract or unsuccessful implementation.
Our products are technologically complex and incorporate many technological innovations. Prospective customers generally must make significant
commitments of resources to test and validate our products before including them in any particular vehicle model. The development cycles of our products
with new customers are approximately six months to two years after a design win, depending on the customer and the complexity of the product. These
development cycles result in us investing our resources prior to realizing any revenues from the customer contracts. Further, we are subject to the risk that a
customer cancels or postpones implementation of our technology, as well as the risk that we will not be able to implement our technology successfully.
Further, our sales could be less than forecast if the vehicle model is unsuccessful, including reasons unrelated to our technology. Long development cycles
and product cancellations or postponements may adversely affect our business, results of operations and financial condition.
Our business could be materially and adversely affected if we lost any of our largest customers.
The loss of business from any of our major customers, whether by lower overall demand for vehicles, cancellation of existing contracts or the failure
to award us new business, could have a material adverse effect on our business, results of operations and financial condition. Alternatively, there is a risk
that one or more of our major customers could be unable to pay our invoices as they become due or that a customer will simply refuse to make such
payments given its financial difficulties. If a major customer becomes subject to bankruptcy or similar proceedings whereby contractual commitments are
subject to stay of execution and the possibility of legal or other modification, or if a major customer otherwise successfully procures protection against us
legally enforcing its obligations, it is likely that we will be forced to record a substantial loss. In addition, certain of our customers that are tier 1 suppliers
exclusively sell to certain OEMs, including some of our other customers. A bankruptcy of, or other significant disruption to, any of these OEMs could
intensify any adverse impact on our business and results of operations.
Our operating results may fluctuate significantly from period to period, and this may cause our stock price to decline.
Our revenue and operating results may fluctuate materially in the future. These fluctuations may cause our results of operations to not meet the
expectations of securities analysts or investors which would likely cause the price of our stock to decline. Factors that may contribute to fluctuations in
operating results include:
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given our limited customer base, the volume, timing and fulfillment of large customer contracts;
renewals of existing customer contracts and wins of new customer programs;
our mix of variable, fixed prepaid or fixed minimum purchase commitment license contracts;
increased expenditures incurred pursuing new product or market opportunities;
the timing of the receipt of royalty reports;
fluctuating sales by our customers to their end-users;
contractual counterparties failing to meet their contractual commitments to us;
introduction of new products by us or our competitors;
cybersecurity or data breaches;
reduction in the prices of our products in response to competition, market conditions or contractual obligations;
impairment of goodwill or intangible assets;
accounts receivable that are not collectible;
higher than anticipated costs related to fixed-price contracts with our customers;
change in costs due to regulatory or trade restrictions;
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expenses incurred in litigation matters, whether initiated by us or brought by third-parties against us, and settlements or judgments we are
required to pay in connection with disputes;
changes in our stock compensation practices, as relates to employee short-term incentive payments; and
general economic trends as they affect the customer bases into which we sell.
Due to the foregoing factors, among others, our financial and operating results may fluctuate significantly from period to period. Our expense levels
are based in significant part on our expectations of future revenue, and we may not be able to reduce our expenses quickly to respond to near-term shortfalls
in projected revenue. Therefore, our failure to meet revenue expectations would seriously harm our operating results, financial condition and cash flows.
We may not be successful with the adoption of new products.
Part of our growth strategy includes the successful introduction of new products that will rely on subscription or transactional-based revenue
generation. These represent new applications and we cannot assure the introduction of these new products, the level of adoption of these new products, or
how quickly they can ramp to generate meaningful revenue. The development and launch of new products will require maintaining adequate resources,
such as the appropriate personnel and technology to develop such products. We may experience delays between the time we incur expenses associated with
the development and launch of new products and the revenue generated from the products. In addition, anticipated demand for the new products could
decrease after we have spent time and resources on the development of the new product, or our efforts may not lead to the successful introduction of new
products that are competitive, which would harm our business, results of operations and financial condition.
If we are unable to attract and retain management and other key personnel, our business could be harmed.
If any of our management or other key employees were to leave, we could face substantial difficulty in hiring qualified successors and could
experience a loss in productivity while any successor obtains the necessary training and experience. Although we have arrangements with some of our
executive officers designed to promote retention, our employment relationships are generally at-will and we have had management and other key
employees leave in the past. We cannot assure you that one or more management or other key employees will not leave in the future. The departure of key
leadership personnel, in particular, can take significant knowledge and experience from the Company. While this loss of knowledge and experience can be
mitigated through a successful transition, there can be no assurance that we will be successful in such efforts. If we do not successfully manage the
transition of management positions, it could be viewed negatively by our customers, employees or investors and could have an adverse impact on our
business and strategic direction. A change in senior management, such as we experienced over the past year, also could result in our future strategy and
plans differing from those of the past. Further, we intend to continue to hire additional highly qualified personnel, including research and development and
operational personnel, but may not be able to attract, assimilate or retain qualified personnel in the future. Any failure to attract, integrate, motivate and
retain these employees could harm our business.
We depend on skilled employees and could be impacted by a shortage of critical skills.
Much of our future success depends on the continued service and availability of skilled employees, particularly with respect to technical areas.
Skilled and experienced personnel in the areas where we compete are in high demand, and competition for their talents is intense. We expect that many of
our key employees will receive a total compensation package that includes equity awards. New regulations or volatility in the stock market could diminish
our use, and the value, of our equity awards. This would place us at a competitive disadvantage in attracting qualified personnel or force us to offer more
cash compensation.
Some of our employees are represented by workers councils or unions or are subject to local laws that are less favorable to employers than the laws of
the U.S.
Most of our employees in Europe are represented by workers councils or unions. Although we believe we have a good working relationship with our
employees and their legal representatives, they must approve any changes in terms which may impede efforts to restructure our workforce.
Cybersecurity and data privacy incidents or breaches may damage client relations and inhibit our growth.
The confidentiality and security of our information, and that of third parties, is critical to our business. In particular, our services involve the
transmission, use, and storage of customers’ and their customers’ information, which may be confidential or contain personally identifiable information.
Our internal computer systems and those of our current or future service providers, contractors and consultants are vulnerable to damage from computer
viruses, unauthorized access, natural disasters, terrorism, war and telecommunication and electrical failures. Attacks on information technology systems are
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persistence, sophistication and intensity, and they are being conducted by increasingly sophisticated and organized groups and individuals with a wide
range of motives and expertise. The prevalent use of mobile devices also increases the risk of data security incidents.
While we maintain a broad array of information security and privacy measures, policies and practices, our networks may be breached through a
variety of means, resulting in someone obtaining unauthorized access to our information, to information of our customers or their customers, or to our
intellectual property; disabling or degrading service; or sabotaging systems or information. In addition, hardware, software, systems, or applications we
develop or procure from third parties may contain defects in design or manufacture or other problems that could unexpectedly compromise information
security. Unauthorized parties may also attempt to gain access to our systems or facilities, or those of third parties with whom we do business, through
fraud or other forms of deceiving our employees, contractors, and vendors. Because the techniques used to obtain unauthorized access, or to sabotage
systems, change frequently and generally are not recognized until launched against a target, we may be unable to anticipate these techniques or to
implement adequate preventative measures.
While we have not experienced any material system failure, accident or security breach to date, if such an event were to occur and cause
interruptions in our operations or the operations of third-party service providers, contractors and consultants, it could result in significant reputational,
financial, legal, regulatory, business or operational harm. Any cybersecurity or data privacy incident or breach may result in:
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loss of revenue resulting from the operational disruption;
loss of revenue or increased bad debt expense due to the inability to invoice properly or to customer dissatisfaction resulting in collection
issues;
loss of revenue due to loss of customers;
material remediation costs to recreate or restore systems;
material investments in new or enhanced systems in order to enhance our information security posture;
cost of incentives offered to customers to restore confidence and maintain business relationships;
reputational damage resulting in the failure to retain or attract customers;
costs associated with potential litigation or governmental investigations, enforcement actions or regulatory fines;
claims by third parties asserting that we have breached our privacy, confidentiality, data security or similar obligations;
costs associated with any required notices of a data breach;
costs associated with the potential loss of critical business data;
difficulties enhancing or creating new products due to loss of data or data integrity issues; and
other consequences of which we are not currently aware of but will discover through the remediation process.
In addition, our liability insurance may not be sufficient in type or amount to cover us against claims related to security breaches, cyberattacks and
other related breaches. While we expect to continue to incur significant costs to continuously enhance our information security measures to defend against
the threat of cybercrime, there can be no assurance that such measures will successfully prevent service interruptions, data security incidents and other
security breaches. Any cybersecurity or data privacy incidents could have a material adverse effect on our business, results of operations and financial
condition.
Compliance with global privacy and data security requirements could result in additional costs and liabilities to us or inhibit our ability to collect and
process data globally, and the failure to comply with such requirements could have a material adverse effect on our business, financial condition or
results of operations.
Privacy and data security have become significant issues in the U.S., Europe and in many other jurisdictions where we conduct or may in the future
conduct our operations. The regulatory framework for the collection, use, safeguarding, sharing and transfer of information worldwide is rapidly evolving
and is likely to remain uncertain for the foreseeable future. Globally, virtually every jurisdiction in which we operate has established its own data security
and privacy frameworks with which we must comply.
Notably, for example, on May 25, 2018, the European General Data Protection Regulation 2016/679, which is commonly referred to as GDPR, took
effect. The GDPR applies to any company established in the EEA as well as any company outside the EEA that collects or otherwise processes personal
data in connection with the offering of goods or services to individuals in the EEA or the monitoring of their behavior. The GDPR enhances data protection
obligations for processors and controllers of personal data, including, for example, expanded disclosures about how personal information is to be used,
limitations on retention of information,
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mandatory data breach notification requirements and onerous obligations on services providers. The GDPR imposes additional obligations and risk upon
our business and substantially increases the penalties to which we could be subject in the event of any non-compliance.
Further, European data protection laws also prohibit the transfer of personal data from the EEA and Switzerland to third countries that are not
considered to provide adequate protections for personal data, including the U.S. With regard to transfers of personal data from the EEA, transfers to third
countries that have not been approved as “adequate” are prohibited unless an appropriate safeguard specified by the GDPR is implemented, such as the
Standard Contractual Clauses, or SCCs, approved by the European Commission or binding corporate rules, or a derogation applies. European regulators
have issued recent guidance that imposes significant new diligence requirements on transferring data outside the European Union, including under an
approved transfer mechanism. While we have taken steps to mitigate the impact on us with respect to transfers of data,
In addition, we are subject to Swiss data protection laws, including the Federal Act on Data Protection, or the FADP. While the FADP provides broad
protections to personal data, on September 25, 2020, the Swiss federal Parliament enacted a revised version of the FADP, which is anticipated to become
effective in 2022 or the beginning of 2023. The new version of the FADP aligns Swiss data protection law with the GDPR.
Further, in addition to existing European data protection law, the European Union also is considering another draft data protection regulation. The
proposed regulation, known as the Regulation on Privacy and Electronic Communications, or ePrivacy Regulation, would replace the current ePrivacy
Directive. New rules related to the ePrivacy Regulation are likely to include enhanced consent requirements in order to use communications content and
communications metadata, as well as obligations and restrictions on the processing of data from an end-user’s terminal equipment, which may negatively
impact our product offerings and our relationships with our customers.
As another prominent example, we are also subject to data protection regulation in the UK. Following the UK’s withdrawal from the EU on January
31, 2020 and the end of the transitional arrangements agreed between the UK and EU as of January 1, 2021, the GDPR has been incorporated into UK
domestic law. United Kingdom-based organizations doing business in the European Union will need to continue to comply with the GDPR. Although the
UK is regarded as a third country under the EU’s GDPR, the European Commission recognizes the UK as providing adequate protection under the EU
GDPR and, therefore, transfers of personal data originating in the EU to the UK remain unrestricted. Like the EU GDPR, the UK GDPR restricts personal
data transfers outside the UK to countries not regarded by the UK as providing adequate protection. The UK government has confirmed that personal data
transfers from the UK to the EEA remain free flowing. The Information Commissioner’s Office, or ICO, has recently introduced new mechanisms for
international transfers of personal data originating from the U.K. (an International Data Transfer Agreement, or IDTA, along with a separate addendum to
the EU SCCs). We will be required to implement these new safeguards when conducting restricted cross-border data transfers and doing so will require
significant effort and cost.
In addition to European data protection requirements, the United States Federal Trade Commission and many state attorney generals are interpreting
federal and state consumer protection laws as imposing standards for the online collection, use, dissemination, and security of data. For example, in June
2018, California enacted the CCPA, which became operative on January 1, 2020 and broadly defines personal information, gives California residents
expanded privacy rights and protections, and provides for civil penalties for violations and a private right of action for data breaches. Additionally, a new
privacy law, the CPRA, recently was approved by California voters in the November 2020 election. The CPRA will significantly modify the CCPA, and
goes into effect and fully supersedes CCPA on January 1, 2023. The CPRA will significantly modify the CCPA, including by expanding consumers’ rights
and establishing a new state agency that will be vested with authority to implement and enforce the CPRA. For example, the CPRA and the CCPA may lead
other states to pass comparable legislation, with potentially greater penalties, and more rigorous compliance requirements relevant to our business. Virginia
enacted the VCDA and Colorado enacted the CDA, respectively, which have similar requirements and obligations to the CCPA.
The regulatory framework governing the collection, processing, storage, use and sharing of certain information, particularly financial and other
personal data, is rapidly evolving and is likely to continue to be subject to uncertainty and varying interpretations. In addition to new and strengthened laws
and regulations in the U.S., European Union, and United Kingdom, many foreign jurisdictions have passed new laws, strengthened existing laws, or are
contemplating new laws regulating personal data. For example, we are subject to stringent privacy and data protection requirements in many countries
including Singapore and Japan. Additional jurisdictions with stringent data protection laws include Brazil and China. We also continue to see jurisdictions,
such as Russia, imposing data localization laws, which under Russian laws require personal information of Russian citizens to be, among other data
processing operations, initially collected, stored, and modified in Russia.
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Preparing for and complying with the evolving application of these laws has required and will continue to require us to incur substantial operational
costs and may interfere with our intended business activities, inhibit our ability to expand into certain markets or prohibit us from continuing to offer
services in those markets without significant additional costs. It is possible that these laws may impose, or may be interpreted and applied to impose,
requirements that are inconsistent with our existing data management practices or the features of our services and platform capabilities. Any failure or
perceived failure by us, or any third parties with which we do business, to comply with our posted privacy policies, changing consumer expectations,
evolving laws, rules and regulations, industry standards, or contractual obligations to which we or such third parties are or may become subject, may result
in actions or other claims against us by governmental entities or private actors, the expenditure of substantial costs, time and other resources, , may cause
our customers to lose confidence in our solutions, harm our reputation, expose us to litigation, regulatory investigations and resulting liabilities including
reimbursement of customer costs, damages, penalties or fines imposed by regulatory agencies; and require us to incur significant expenses for remediation.
A significant portion of our revenues are derived, and a significant portion of our research and development activities are based, outside the United
States. Our results could be harmed by economic, political, and regulatory risks associated with these international regions and foreign currency
fluctuations.
Because we operate worldwide, our business is subject to risks associated with doing business internationally. We generate most of our international
revenue in Europe and Asia, and we anticipate that revenue from international operations will increase in the future. In addition, some of our products are
developed outside the United States. We conduct a significant portion of the development of our voice recognition and natural language understanding
solutions in Canada and Germany. We also have significant research and development resources in Belgium, China, India, Italy, and the United Kingdom.
We are exposed to fluctuating exchange rates of foreign currencies, including the euro, British pound, Canadian dollar, Chinese RMB, Japanese yen, Indian
rupee and South Korean won. Accordingly, our future results could be harmed by a variety of factors associated with international sales and operations,
including:
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adverse political and economic conditions, or changes to such conditions, in a specific region or country;
trade protection measures, including tariffs and import/export controls, imposed by the United States and/or by other countries or regional
authorities such as China, Canada or the European Union;
the impact on local and global economies of the United Kingdom leaving the European Union;
changes in foreign currency exchange rates or the lack of ability to hedge certain foreign currencies;
compliance with laws and regulations in many countries, including with respect to data protection, anticorruption, labor relations, tax, foreign
currency, anti-competition, import, export and trade regulations, and any subsequent changes in such laws and regulations;
geopolitical turmoil, including terrorism and war, such as the conflict between Russia and Ukraine;
changing data privacy regulations and customer requirements to locate data centers in certain jurisdictions;
evolving restrictions on cross-border investment, including recent enhancements to the oversight by the Committee on Foreign Investment in
the United States pursuant to the Foreign Investment Risk Preview Modernization Act and substantial restrictions on investment from China;
changes in applicable tax laws;
difficulties in staffing and managing operations in multiple locations in many countries;
longer payment cycles of foreign customers and timing of collections in foreign jurisdictions; and
less effective protection of intellectual property than in the United States.
Our business in China is subject to aggressive competition and is sensitive to economic, market and political conditions.
We operate in the highly competitive automotive cognitive assistance market in China and face competition from both international and smaller
domestic manufacturers. We anticipate that additional competitors, both domestic and international, may seek to enter the Chinese market resulting in
increased competition. Increased competition may result in price reductions, reduced margins and our inability to gain or hold market share. There have
been periods of increased market volatility and moderation in the levels of economic growth in China, which resulted in periods of lower automotive
production growth rates in China than those previously experienced. In addition, political tensions between China and the United States may negatively
impact our ability to conduct business in China. If we are unable to grow or maintain our position in the Chinese market, the pace of growth slows or
vehicle sales in China decrease, our business, results of operations and financial condition could be materially adversely affected.
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Government regulations and business considerations may also require us to conduct business in China through joint ventures with Chinese companies. Our
participation in joint ventures would limit our control over Chinese operations and may expose our proprietary technologies to misappropriation by joint
venture partners. The above risks, if realized, could have a material adverse effect on our business, results of operations and financial condition.
Interruptions or delays in our services or services from data center hosting facilities or public clouds could impair the delivery of our services and harm
our business.
Because our services are complex and incorporate a variety of third-party hardware and software, our services may have errors or defects that could
result in unanticipated downtime for our customers and harm to our reputation and our business. We have from time to time, found defects in our services,
and new errors in our services may be detected in the future. In addition, we currently serve our customers from data center hosting facilities or third-party
public clouds we directly manage. Any damage to, or failure of, the systems and facilities that serve our customers in whole or in part could result in
interruptions in our service. Interruptions in our service may reduce our revenue, cause us to issue credits or pay service level agreement penalties, cause
customers to terminate their on-demand services, and adversely affect our renewal rates and our ability to attract new customers.
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If our goodwill or other intangible assets become impaired, our operating results could be negatively impacted.
We have significant intangible assets, including goodwill and other intangible assets, which are susceptible to valuation adjustments as a result of
changes in various factors or conditions. The most significant intangible assets are goodwill, customer relationships and patents and core technologies.
Customer relationships are amortized over their estimated economic lives based on the pattern of economic benefits expected to be generated from the use
of the asset. Technologies and patents are amortized on a straight-line basis over their estimated useful lives. We assess the potential impairment of
goodwill on an annual basis. Whenever events or changes in circumstances indicate that the carrying value may not be recoverable, we will be required to
assess the potential impairment of goodwill and other intangible assets. Factors that could trigger an impairment of such assets include the following:
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changes in our organization or management reporting structure that could result in additional reporting units, which may require alternative
methods of estimating fair values or greater disaggregation or aggregation in our analysis by reporting unit;
significant under performance relative to historical or projected future operating results;
significant changes in the strategy for our overall business;
significant negative industry or economic trends;
significant decline in our stock price for a sustained period; and
our market capitalization declining to below net book value.
At September 30, 2022, we concluded indicators of impairment were present due to the current macroeconomic conditions, including continued
declines in our stock price. Based upon the results of the impairment test, we recorded a goodwill impairment charge of $213.7 million within the
Consolidated Statement of Operations.
Future adverse changes in these or other unforeseeable factors could result in additional impairment charges that would impact our results of
operations and financial position in the reporting period identified.
Risks Relating to our Intellectual Property and Technology
Third parties have claimed and may claim in the future that we are infringing their intellectual property, and we could be exposed to significant
litigation or licensing expenses or be prevented from selling our products if such claims are successful.
From time to time, we are subject to claims and legal actions alleging that we or our customers may be infringing or contributing to the infringement
of the intellectual property rights of others. We may be unaware of intellectual property rights of others that may cover some of our technologies and
products. If it appears necessary or desirable, we may seek licenses for these intellectual property rights. However, we may not be able to obtain licenses
from some or all claimants, the terms of any offered licenses may not be acceptable to us, and we may not be able to resolve disputes without litigation.
Any litigation regarding intellectual property could be costly and time-consuming and could divert the attention of our management and key personnel from
our business operations. Intellectual property disputes could subject us to significant liabilities, require us to enter into royalty and licensing arrangements
on unfavorable terms, prevent us from licensing certain of our products, cause severe disruptions to our operations or the markets in which we compete, or
require us to satisfy indemnification commitments with our customers including contractual provisions under various arrangements. Any of these could
seriously harm our business, financial condition or operations.
Unauthorized use of our proprietary technology and intellectual property could adversely affect our business and results of operations.
Our success and competitive position depend in large part on our ability to obtain and maintain intellectual property rights protecting our products
and services. We rely on a combination of patents, copyrights, trademarks, service marks, trade secrets, confidentiality provisions and licensing
arrangements to establish and protect our intellectual property and proprietary rights. Unauthorized parties may attempt to copy or discover aspects of our
products or to obtain, license, sell or otherwise use information that we regard as proprietary. Policing unauthorized use of our products is difficult and we
may not be able to protect our technology from unauthorized use. Additionally, our competitors may independently develop technologies that are
substantially the same or superior to our technologies and that do not infringe our rights. In these cases, we would be unable to prevent our competitors
from selling or licensing these similar or superior technologies. In addition, the laws of some foreign countries do not protect our proprietary rights to the
same extent as the laws of the United States. Although the source code for our proprietary software is protected both as a trade secret and as a copyrighted
work, litigation may be necessary to enforce our intellectual property rights, to protect our trade secrets, to determine the validity and scope of the
proprietary rights of others, or to defend against claims of infringement or invalidity. Litigation, regardless of the outcome, can be very expensive and can
divert management’s efforts.
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Our software products may have bugs, which could result in delayed or lost revenue, expensive correction, liability to our customers and claims against
us.
Complex software products such as ours may contain errors, defects or bugs. Defects in the solutions or products that we develop and sell to our
customers could require expensive corrections and result in delayed or lost revenue, adverse customer reaction and negative publicity about us or our
products and services. Customers who are not satisfied with any of our products may also bring claims against us for damages, which, even if unsuccessful,
would likely be time-consuming to defend, and could result in costly litigation and payment of damages. Such claims could harm our reputation, financial
results and competitive position.
We may be unable to respond quickly enough to changes in technology and technological risks and to develop our intellectual property into
commercially viable products.
Changes in legislative, regulatory or industry requirements or in competitive technologies may render certain of our products obsolete or less
attractive to our customers, which could adversely affect our results of operations. Our ability to anticipate changes in technology and regulatory standards
and to successfully develop and introduce new and enhanced products on a timely basis will be a significant factor in our ability to be competitive. There is
a risk that we will not be able to achieve the technological advances that may be necessary for us to be competitive or that certain of our products will
become obsolete. Moreover, restrictions on the use of our technology over the next two years under the Intellectual Property Agreement which we entered
into with Nuance in connection with the Spin-Off may limit our ability to adapt to technology and regulatory developments and thereby compete effectively
in the market. We are also subject to the risks generally associated with new product introductions and applications, including lack of market acceptance,
delays in product development and failure of products to operate properly. These risks could have a material adverse effect on our business, results of
operations and financial condition.
We utilize certain key technologies, content and services from, and integrate certain of our solutions with, third parties and may be unable to replace
those technologies, content and services if they become obsolete, unavailable or incompatible with our solutions.
We utilize certain key technologies and content from, and/or integrate certain of our solutions with, hardware, software, services and content of third
parties. Some of these vendors are also our competitors in various respects. These third-party vendors could, in the future, seek to charge us cost prohibitive
fees for such use or integration or may design or utilize their solutions in a manner that makes it more difficult for us to continue to utilize their solutions, or
integrate their technologies with our solutions, in the same manner or at all. Any significant interruption in the supply or maintenance of such third-party
hardware, software, services or content could negatively impact our ability to offer our solutions unless and until we replace the functionality provided by
this third-party hardware, software and/or content. In addition, we are dependent upon these third parties’ ability to enhance their current products, develop
new products on a timely and cost-effective basis and respond to emerging industry standards and other technological changes. There can be no assurance
that we would be able to replace the functionality or content provided by third-party vendors in the event that such technologies become obsolete or
incompatible with future versions of our solutions or are otherwise not adequately maintained or updated. Any delay in or inability to replace any such
functionality could have a material adverse effect on our business, results of operations and financial condition. Furthermore, delays in the release of new
and upgraded versions of third-party software applications could have a material adverse effect on our business, results of operations and financial
condition.
Risks Relating to the Spin-Off
If the Spin-Off were determined not to qualify as tax-free for U.S. federal income tax purposes, we could have an indemnification obligation to Nuance,
which could adversely affect our business, financial condition and results of operations.
On October 1, 2019, we were spun off from Nuance. Completion of the Spin-Off was conditioned on Nuance’s receipt of a written opinion from its
tax counsel to the effect that the Distribution will qualify for non-recognition of gain and loss under Section 355 and related provisions of the Internal
Revenue Code of 1986, as amended, or the Code.
The opinion of counsel does not address any U.S. state or local or foreign tax consequences of the Spin-Off. The opinion assumed that the Spin-Off
was completed according to the terms of the Separation and Distribution Agreement and relied on the facts as stated in the Separation and Distribution
Agreement, the Tax Matters Agreement, the other ancillary agreements, Information Statement included as part of our registration statement on Form 10
and a number of other documents related to the Spin-Off. In addition, the opinion was based on certain assumptions as well as certain representations as to
factual matters from, and certain covenants by, Nuance and us. The opinion cannot be relied on if any of the assumptions, representations or covenants are
incorrect, incomplete or inaccurate or are violated in any material respect.
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If, as a result of any of our representations being untrue or our covenants being breached, the Spin-Off, and certain related transactions or certain
transactions, were determined not to qualify for non-recognition of gain or loss under Section 355 and related provisions of the Code, we could be required
to indemnify Nuance for the resulting taxes and related expenses. Those amounts could be material. Any such indemnification obligation could adversely
affect our business, financial condition and results of operations.
We have agreed to numerous restrictions to preserve the non-recognition treatment of the Spin-Off, which may reduce our strategic and operating
flexibility.
We have agreed in the Tax Matters Agreement to covenants and indemnification obligations that address compliance with Section 355 and related
provisions of the Code and are intended to preserve the tax-free nature of the Spin-Off. These covenants and indemnification obligations may limit our
ability to pursue certain strategic transactions that may maximize the value of our business and, under certain circumstances, might discourage or delay a
strategic transaction that our stockholders may consider favorable.
We may be unable to achieve some or all of the benefits that we expect to achieve from the Spin-Off.
We believe that, as an independent, publicly traded company, we will be able to, among other things, design and implement corporate strategies and
policies and develop partnerships that are better targeted to our business’s areas of strength and differentiation, better focus our financial and operational
resources on those specific strategies, create effective incentives for our management and employees that are more closely tied to our business performance,
provide investors more flexibility and enable us to achieve alignment with a more natural stockholder base and implement and maintain a capital structure
designed to meet our specific needs. We may be unable to achieve some or all of the benefits that we expect to achieve as an independent company in the
time we expect, if at all, for a variety of reasons, including:
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as an independent, publicly traded company, we may be more susceptible to market fluctuations and other adverse events than if it were still a
part of Nuance; and
as an independent, publicly traded company, our businesses are less diversified than Nuance’s businesses prior to the separation.
If we fail to achieve some or all of the benefits that we expect to achieve as an independent company, or do not achieve them in the time we expect,
our business, financial condition and results of operations could be adversely affected.
We may have potential business conflicts of interest with Nuance with respect to our past and ongoing relationships.
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Conflicts of interest may arise between Nuance and us in a number of areas relating to our past and ongoing relationships, including:
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labor, tax, employee benefit, indemnification and other matters arising from our separation from Nuance;
intellectual property matters;
employee recruiting and retention; and
business combinations involving our company.
We may not be able to resolve any potential conflicts, and, even if we do so, the resolution may be less favorable to us than if we were dealing with
an unaffiliated party.
The allocation of intellectual property rights and data between Nuance and Cerence as part of the Spin-Off, the shared use of certain intellectual
property rights and data following the Spin-Off and restrictions on the use of intellectual property rights, could adversely impact our reputation, our
ability to enforce certain intellectual property rights that are important to us and our competitive position.
In connection with the Spin-Off, we entered into agreements with Nuance governing the allocation of intellectual property rights and data related to
our business. These agreements include restrictions on our use of Nuance’s intellectual property rights and data licensed to us, including limitations on the
field of use in which we can exercise our license rights. As a result, we may not be able to pursue opportunities that require use of these license rights in
industries other than the automotive industry and certain ancillary fields. Moreover, the licenses granted to us under Nuance’s intellectual property rights
and data are non-exclusive, so Nuance may be able to license the rights and data to third parties that may compete with us. These agreements could
adversely affect our position and options relating to intellectual property enforcement, licensing negotiations and monetization and access to data used in
our business. We also may not have sufficient rights to grant sublicenses of intellectual property or data used in our business, and we may be subject to third
party rights pertaining to the underlying intellectual property or data. These circumstances could adversely affect our ability to protect our competitive
position in the industry and otherwise adversely affect our business, financial condition and results of operations.
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Risks Relating to Our Securities and Indebtedness
The terms of the Senior Credit Facilities restrict our current and future operations, particularly our ability to incur debt that we may need to fund
initiatives in response to changes in our business, the industry in which we operate, the economy and governmental regulations.
The terms of the Senior Credit Facilities include a number of restrictive covenants that impose significant operating and financial restrictions on us
and limit our ability to engage in actions that may be in our long-term best interests. These restrict our ability to take some or all of the following actions:
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incur or guarantee additional indebtedness or sell disqualified or preferred stock;
pay dividends on, make distributions in respect of, repurchase or redeem capital stock;
make investments or acquisitions;
create liens;
enter into sale/leaseback transactions;
enter into agreements restricting the ability to pay dividends or make other intercompany transfers;
enter into transactions with affiliates;
prepay, repurchase or redeem certain kinds of indebtedness;
consolidate, merge, sell or otherwise dispose of assets or sell stock of our subsidiaries; and/or
significantly change the nature of our business.
Furthermore, the lenders under the Senior Credit Facilities have required that we pledge our assets as collateral as security for our repayment
obligations and that we abide by certain financial or operational covenants. Our ability to comply with such covenants and restrictions may be affected by
events beyond our control, including prevailing economic, financial and industry conditions. If market or other economic conditions deteriorate, our ability
to comply with these covenants may be impaired. A breach of any of these covenants, if applicable, could result in an event of default under the terms of
the Senior Credit Facilities. If an event of default occurred, the lenders would have the right to accelerate the repayment of such debt, and the event of
default or acceleration could result in the acceleration of the repayment of any other debt to which a cross-default or cross-acceleration provision applies.
We might not have, or be able to obtain, sufficient funds to make these accelerated payments, and lenders could then proceed against any collateral. Any
subsequent replacement of the agreements governing the Senior Credit Facilities or any new indebtedness could have similar or greater restrictions. The
occurrence and ramifications of an event of default could adversely affect our business, financial condition and results of operations. Moreover, as a result
of all of these restrictions, we may be limited in how we conduct our business and pursue our strategy, unable to raise additional debt financing to operate
during general economic or business downturns or unable to compete effectively or to take advantage of new business opportunities.
We may evaluate whether to pay cash dividends on our common stock in the future, and the terms of our Senior Credit Facilities limit our ability to pay
dividends on our common stock.
Our Board of Directors’, or our Board, decisions regarding the payment of dividends depends on consideration of many factors, such as our financial
condition, earnings, sufficiency of distributable reserves, opportunities to retain future earnings for use in the operation of our business and to fund future
growth, capital requirements, debt service obligations, legal requirements, regulatory constraints and other factors that our Board deems relevant.
Additionally, the terms of the Senior Credit Facilities limit our ability to pay cash dividends. There can be no assurance that we will pay a dividend in the
future or continue to pay any dividend if we do commence paying dividends.
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Servicing our debt may require a significant amount of cash. We may not have sufficient cash flow from our business to pay our indebtedness, and we
may not have the ability to raise the funds necessary to settle for cash conversions of the Notes or to repurchase the Notes for cash upon a fundamental
change, which could adversely affect our business and results of operations.
In June 2020, we issued an aggregate principal amount of $175 million 3.00% convertible senior notes due 2025, or the Notes. The interest rate is
fixed at 3.00% per annum and is payable semi-annually in arrears on June 1 and December 1 of each year, beginning on December 1, 2020. We may also
incur additional indebtedness to meet future financing needs. Our indebtedness could have significant negative consequences for our stockholders and our
business, results of operations and financial condition by, among other things: (a) increasing our vulnerability to adverse economic and industry conditions;
(b) limiting our ability to obtain additional financing; (c) requiring the dedication of a substantial portion of our cash flow from operations to service our
indebtedness, which will reduce the amount of cash available for other purposes; (d) limiting our flexibility to plan for, or react to, changes in our business;
(e) diluting the interests of our existing stockholders as a result of issuing our common stock upon conversion of the Notes; and (f) placing us at a possible
competitive disadvantage with competitors that are less leveraged than us or have better access to capital.
Our ability to make scheduled payments of the principal of, to pay interest on, or to refinance our indebtedness, including the Notes, depends on our
future performance, which is subject to economic, financial, competitive, and other factors beyond our control. Our business may not generate cash flows
from operations in the future that are sufficient to service our debt and make necessary capital expenditures. If we are unable to generate such cash flows,
we may be required to adopt one or more alternatives, such as selling assets, restructuring debt, or obtaining additional debt financing or equity capital on
terms that may be onerous or highly dilutive. Our ability to refinance any future indebtedness will depend on the capital markets and our financial condition
at such time. We may not be able to engage in any of these activities or engage in these activities on desirable terms, which could result in a default on our
debt obligations. In addition, any of our future debt agreements may contain restrictive covenants that may prohibit us from adopting any of these
alternatives.
Holders of the Notes have the right to require us to repurchase their Notes upon the occurrence of a fundamental change (as defined in the indenture
governing the Notes) at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest, if any.
Upon conversion, unless we elect to deliver solely shares of our common stock to settle such conversion (other than paying cash in lieu of delivering any
fractional share), we will be required to make cash payments in respect of the Notes being converted. We may not have enough available cash or be able to
obtain financing at the time we are required to make repurchases in connection with such conversion and our ability to pay may additionally be limited by
law, by regulatory authority, or by agreements governing our existing and future indebtedness. Our failure to repurchase the Notes at a time when the
repurchase is required by the indenture governing the Notes or to pay any cash payable on future conversions as required by such indenture would
constitute a default under such indenture. A default under the indenture or the fundamental change itself could also lead to a default under agreements
governing our existing and future indebtedness. If the repayment of the related indebtedness were to be accelerated after any applicable notice or grace
periods, we may not have sufficient funds to repay the indebtedness and repurchase the Notes or make cash payments upon conversions thereof.
In addition, our indebtedness, combined with our other financial obligations and contractual commitments, could have other important
consequences. For example, it could:
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make us more vulnerable to adverse changes in general U.S. and worldwide economic, industry, and competitive conditions and adverse
changes in government regulations;
limit our flexibility in planning for, or reacting to, changes in our business and our industry;
place us at a disadvantage compared to our competitors who have less debt;
limit our ability to borrow additional amounts for funding acquisitions, for working capital, and for other general corporate purposes; and
make an acquisition of our company less attractive or more difficult.
Any of these factors could harm our business, results of operations, and financial condition. In addition, if we incur additional indebtedness, the risks
related to our business and our ability to service or repay our indebtedness would increase.
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The conditional conversion feature of the Notes, if triggered, may adversely affect our financial condition and results of operations and the value of our
common stock.
In the event the conditional conversion feature of the Notes is triggered, holders of Notes will be entitled to convert the Notes at any time during
specified periods at their option. If one or more holders elect to convert their Notes, unless we elect to satisfy our conversion obligation by delivering solely
shares of our common stock (other than paying cash in lieu of delivering any fractional share), we would be required to settle a portion or all of our
conversion obligation through the payment of cash, which could adversely affect our liquidity. In addition, even if holders do not elect to convert their
Notes, we could be required under applicable accounting rules to reclassify all or a portion of the outstanding principal of the Notes as a current rather than
long-term liability, which would result in a material reduction of our net working capital.
The conversion of some or all of the Notes would dilute the ownership interests of existing stockholders to the extent we satisfy our conversion
obligation by delivering shares of our common stock upon any conversion of such Notes. Our Notes may become in the future convertible at the option of
their holders under certain circumstances. If holders of our Notes elect to convert their Notes, we may settle our conversion obligation by delivering to them
a significant number of shares of our common stock, which would cause dilution to our existing stockholders.
The accounting method for convertible debt securities that may be settled in cash, such as the Notes, could have a material effect on our reported
financial results.
Under FASB ASC Subtopic 470-20, Debt with Conversion and Other Options, or ASC 470-20, an entity must separately account for the liability
and equity components of convertible debt instruments (such as the Notes) that may be settled entirely or partially in cash upon conversion in a manner that
reflects the issuer’s economic interest cost. ASC 470-20 requires the value of the conversion options of the Notes, representing the equity component, to be
recorded as additional paid-in capital within stockholders’ equity in our consolidated balance sheet and as a discount to the Notes, which reduces their
initial carrying value. The carrying value of the Notes, net of the applicable discount recorded, will be accreted up to the principal amount of the Notes, as
the case may be, from the issuance date until maturity, which will result in non-cash charges to interest expense in our consolidated statement of operations.
Accordingly, we will report lower net income or higher net loss in our financial results because ASC 470-20 requires interest to include both the current
period’s accretion of the debt discount and the instrument’s coupon interest, which could adversely affect our reported or future financial results, the trading
price of our common stock, and the respective trading price of the Notes.
In August 2020, the FASB issued Accounting Standards Update ASU 2020-06, or ASU 2020-06, with the intent to simplify ASC 470-20 and ASC
subtopic 815-40, Contracts in Entity’s Own Equity, or ASC 815-40. Among the changes, ASU 2020-06 removed the requirement to bifurcate the liability
and equity components of convertible debt instruments (such as the Notes) that may be settled entirely or partially in cash upon conversion. The removal of
the bifurcation of liability and equity components would eliminate non-cash interest expense corresponding to the amounts recorded within equity. In
addition, ASU 2020-06 precludes the use of the treasury stock method, when calculating diluted earnings per share, for convertible debt instruments that
may be settled entirely or partially in cash upon conversion. The FASB has specified that public companies should adopt ASU 2020-06 as of the beginning
of its annual fiscal year, for fiscal years beginning after December 15, 2021, our fiscal year 2023.
We currently apply the “if-converted” method for calculating any potential dilutive effect of the conversion options embedded in the Notes on
diluted net income per share, which assumes that all of the Notes were converted solely into shares of common stock at the beginning of the reporting
period, unless the result would be anti-dilutive. The application of the if-converted method may reduce our reported diluted net income per share to the
extent we are profitable, and accounting standards may change in the future in a manner that may otherwise adversely affect our diluted net income per
share.
Certain provisions in our Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws and Delaware law may discourage
takeovers.
Several provisions of our Amended and Restated Certificate of Incorporation, Amended and Restated By-Laws and Delaware law may discourage,
delay or prevent a merger or acquisition. These include, among others, provisions that:
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do not permit our stockholders to act by written consent and require that stockholder action must take place at an annual or special meeting of
our stockholders, in each case except as such rights may otherwise be provided to holders of preferred stock;
establish advance notice requirements for stockholder nominations and proposals;
provide that a special meeting of our stockholders may only be called by our Board, the Chairman of our Board or our Chief Executive Officer,
or at the request of holders of not less than 20% of the outstanding shares of our common stock; and
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limit our ability to enter into certain business combination transactions.
These and other provisions of our Amended and Restated Certificate of Incorporation, Amended and Restated By-Laws and Delaware law may
discourage, delay or prevent certain types of transactions involving an actual or a threatened acquisition or change in control of Cerence, including
unsolicited takeover attempts, even though the transaction may offer our stockholders the opportunity to sell their shares of our common stock at a price
above the prevailing market price.
Our Amended and Restated Certificate of Incorporation designates the courts of the State of Delaware as the sole and exclusive forum for certain types
of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for
disputes with us or our directors, officers or other employees.
Our Amended and Restated Certificate of Incorporation provides, in all cases to the fullest extent permitted by law, unless we consent in writing to
the selection of an alternative forum, the Court of Chancery located within the State of Delaware is the sole and exclusive forum for any derivative action
or proceeding brought on behalf of Cerence, any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee or
stockholder of Cerence to Cerence or Cerence’s stockholders, any action asserting a claim arising pursuant to the Delaware General Corporation Law, or
DGCL, or as to which the DGCL confers jurisdiction on the Court of Chancery located in the State of Delaware or any action asserting a claim governed by
the internal affairs doctrine or any other action asserting an “internal corporate claim” as that term is defined in Section 115 of the DGCL. However, if the
Court of Chancery within the State of Delaware does not have jurisdiction, the action may be brought in any other state or federal court located within the
State of Delaware. Further, this exclusive forum provision would not apply to suits brought to enforce a duty or liability created by the Exchange Act or the
Securities Act of 1933, as amended, or the Securities Act, except that it may apply to such suits if brought derivatively on behalf of Cerence. There is,
however, uncertainty as to whether a court would enforce such provision in connection with suits to enforce a duty or liability created by the Exchange Act
or the Securities Act if brought derivatively on behalf of Cerence, and our stockholders will not be deemed to have waived our compliance with the federal
securities laws and the rules and regulations thereunder.
Any person or entity purchasing or otherwise acquiring or holding any interest in shares of our capital stock will be deemed to have notice of and to
have consented to these provisions. This provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes
with us or our directors, officers or other employees, which may discourage such lawsuits. Alternatively, if a court were to find this provision of our
Amended and Restated Certificate of Incorporation inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or
proceedings, we may incur additional costs associated with resolving such matters in other jurisdictions.
General Risk Factors
Tax matters may cause significant variability in our financial results and may impact our overall financial condition.
Our businesses are subject to income taxation in the United States, as well as in many tax jurisdictions throughout the world. Tax rates in these
jurisdictions may be subject to significant change. If our effective tax rate increases, our operating results and cash flow could be adversely affected. Our
effective income tax rate can vary significantly between periods due to a number of complex factors including:
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projected levels of taxable income;
pre-tax income being lower than anticipated in countries with lower statutory rates or higher than anticipated in countries with higher statutory
rates;
increases or decreases to valuation allowances recorded against deferred tax assets;
tax audits conducted and settled by various tax authorities;
adjustments to income taxes upon finalization of income tax returns;
the ability to claim foreign tax credits;
the repatriation of non-U.S. earnings for which we have not previously provided for income taxes;
changes in tax laws and their interpretations in countries in which we are subject to taxation; and
changes to assessments of uncertain tax positions.
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We regularly evaluate the need for a valuation allowance on deferred tax assets, considering historical profitability, projected future taxable income,
the expected timing of the reversals of existing temporary differences and tax planning strategies. This analysis is heavily dependent upon our current and
projected operating results. A decline in future operating results could provide substantial evidence that a full or partial valuation allowance for deferred tax
assets is necessary, which could have a material adverse effect on our results of operations and financial condition.
The commercial and credit environment, may adversely affect our access to capital.
Our ability to issue debt or enter into other financing arrangements on acceptable terms could be adversely affected if there is a material decline in
the demand for our products or in the solvency of our customers or suppliers or if there are other significantly unfavorable changes in economic conditions.
Volatility in the world financial markets, including the recent increases in interest and inflation rates, could increase borrowing costs or affect our ability to
access the capital markets. These conditions may adversely affect our ability to obtain targeted credit ratings.
Our stock price may fluctuate significantly.
The market price of our common stock may fluctuate widely, depending on many factors, some of which may be beyond our control, including:
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actual or anticipated fluctuations in our results of operations due to factors related to our business;
success or failure of our business strategies;
competition and industry capacity;
changes in interest rates and other factors that affect earnings and cash flow;
our level of indebtedness, our ability to make payments on or service our indebtedness and our ability to obtain financing as needed;
our ability to retain and recruit qualified personnel;
our quarterly or annual earnings, or those of other companies in our industry;
announcements by us or our competitors of significant acquisitions or dispositions;
changes in accounting standards, policies, guidance, interpretations or principles;
the failure of securities analysts to cover, or positively cover, our common stock;
changes in earnings estimates by securities analysts or our ability to meet those estimates;
the operating and stock price performance of other comparable companies;
investor perception of our company and our industry;
overall market fluctuations unrelated to our operating performance;
results from any material litigation or government investigation;
changes in laws and regulations (including tax laws and regulations) affecting our business;
changes in capital gains taxes and taxes on dividends affecting stockholders; and
general economic conditions and other external factors.
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Low trading volume for our stock would amplify the effect of the above factors on our stock price volatility.
Should the market price of our shares drop significantly, stockholders may institute securities class action lawsuits against us. A lawsuit against us,
such as the currently pending actions described in Part I – Item 3, “Legal Proceedings,” could cause us to incur substantial costs and could divert the time
and attention of our management and other resources.
Your percentage ownership in Cerence may be diluted in the future.
Your percentage ownership in Cerence may be diluted in the future because of equity issuances for acquisitions, capital market transactions or
otherwise, including equity awards that we grant to our directors, officers, employees and other service providers. In addition, our Board has adopted the
Cerence 2019 Equity Incentive Plan, or the Equity Plan, for the benefit of certain of our current and future employees, service providers and non-employee
directors. Such awards will have a dilutive effect on our earnings per share, which could adversely affect the market price of our common stock.
In addition, our Amended and Restated Certificate of Incorporation authorizes us to issue, without the approval of our stockholders, one or more
classes or series of preferred stock having such designation, powers, preferences and relative, participating, optional and other special rights, including
preferences over our common stock with respect to dividends and distributions, as our Board may generally determine. The terms of one or more classes or
series of preferred stock could dilute the voting power or reduce the value of our common stock. For example, we could grant the holders of preferred stock
the right to elect some number of the members of our Board in all events or upon the happening of specified events, or the right to veto specified
transactions. Similarly, the repurchase or redemption rights or liquidation preferences that we could assign to holders of preferred stock could affect the
residual value of our common stock.
From time-to-time, we may opportunistically evaluate and pursue acquisition opportunities, including acquisitions for which the consideration
thereof may consist partially or entirely of newly-issued shares of our common stock and, therefore, such transactions, if consummated, would dilute the
voting power and/or reduce the value of our common stock.
If we fail to maintain proper and effective internal controls, our ability to produce accurate and timely financial statements could be impaired and
investors’ views of us could be harmed.
The Sarbanes-Oxley Act requires, among other things, that we maintain effective internal control over financial reporting and disclosure controls
and procedures. In particular, we must perform system and process evaluation and testing of our internal control over financial reporting to allow
management and our independent registered public accounting firm to report on the effectiveness of our internal control over financial reporting, as
required by Section 404 of the Sarbanes-Oxley Act, with auditor attestation of the effectiveness of our internal controls. If we are not able to comply with
the requirements of Section 404 in a timely manner, or if we or our independent registered public accounting firm identify deficiencies in our internal
control over financial reporting that are deemed to be material weaknesses, the market price of shares of our common stock could decline and we could be
subject to sanctions or investigations by the SEC or other regulatory authorities, which would require additional financial and management resources.
Our ability to successfully implement our business plan and comply with Section 404 of the Sarbanes-Oxley Act requires us to be able to prepare
timely and accurate financial statements. Any delay in the implementation of, or disruption in the transition to, new or enhanced systems, procedures or
controls may cause our operations to suffer, and we may be unable to conclude that our internal control over financial reporting is effective and to obtain an
unqualified report on internal controls from our auditors as required under Section 404 of the Sarbanes-Oxley Act. Moreover, we cannot be certain that
these measures would ensure that we implement and maintain adequate controls over our financial processes and reporting in the future. Even if we were to
conclude, and our auditors were to concur, that our internal control over financial reporting provided reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the
United States, or GAAP, because of its inherent limitations, internal control over financial reporting might not prevent or detect fraud or misstatements.
This, in turn, could have an adverse impact on trading prices for shares of our common stock, and could adversely affect our ability to access the capital
markets.
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Item 1B. Unresolved Staff Comments.
None.
Item 2. Properties.
Our corporate headquarters is located in Burlington, Massachusetts, and our international headquarters is located in Heerlen, Netherlands. Other
large, leased sites include properties located in: Montreal, Canada; Aachen and Ulm, Germany; Shanghai and Chengdu, China; Merelbeke, Belgium; Turin,
Italy; Tokyo, Japan and Pune, India.
We believe our existing facilities and equipment are in good operating condition and are suitable for the conduct of our business.
Item 3. Legal Proceedings.
City of Miami Fire Fighters’ and Police Officers’ Retirement Trust Action
On February 25, 2022, a purported shareholder class action captioned as City Of Miami Fire Fighters’ And Police Officers’ Retirement Trust v.
Cerence Inc. et al. (the "Securities Action") was filed in the United States District Court for the District of Massachusetts, naming the Company and two of
its former officers as defendants. Following the court's selection of a lead plaintiff and lead counsel, an amended complaint was filed on July 26, 2022. The
plaintiff claims to be suing on behalf of anyone who purchased the Company’s common stock between November 16, 2020 and February 4, 2022. The
lawsuit alleges that material misrepresentations and/or omissions of material fact regarding the Company’s operations, financial performance and prospects
were made in the Company’s public disclosures during the period from November 16, 2020 to February 4, 2022, in violation of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The plaintiff seeks unspecified monetary damages on behalf of
the putative class and an award of costs and expenses, including attorney’s fees. We intend to defend the claims vigorously. Given the uncertainty of
litigation, the preliminary stage of the case, and the legal standards that must be met for, among other things, class certification and success on the merits,
we cannot estimate the reasonably possible loss or range of loss that may result from this action.
Derivative Actions
On May 10 and 12, 2022, respectively, plaintiffs William Shafer and Peter Morse filed shareholder derivative complaints in the United States
District Court for the District of Massachusetts on behalf of Cerence Inc. against defendants (and former officers) Sanjay Dwahan and Mark J. Gallenberger
as well as board members Arun Sarin, Thomas Beaudoin, Marianne Budnik, Sanjay Jha, Kristi Ann Matus, Alfred Nietzel and current CEO and board
member Stefan Ortmanns. These actions contain substantially similar factual and legal contentions and, as such, on June 13, 2022, at the parties' request,
the court consolidated these derivative actions into a single action (the "Consolidated Derivative Action") and appointed Co-Lead Counsel for plaintiffs. In
addition, the parties agreed to stay the Consolidated Derivative Action pending a ruling on the forthcoming motion to dismiss in the Securities Action, and
the court has ordered that stay.
On October 19, 2022, plaintiff Melinda Hipp filed a shareholder derivative complaint in the Delaware Court of Chancery on behalf of Cerence Inc.
against the defendants named in the Consolidated Derivative Action and board member Douglas Davis. This complaint makes factual and legal contentions
substantially similar to those made in the Consolidated Derivative Actions.
Given the uncertainty of litigation, the preliminary stage of the cases, and the legal standards that must be met for, among other things, derivative
standing and success on the merits, we cannot estimate the reasonably possible loss or range of loss that may result from these derivative actions.
Other Legal Proceedings
Similar to many companies in the software industry, we are or may become involved in a variety of claims, demands, suits, investigations and
proceedings that arise from time to time relating to matters incidental to the ordinary course of our business, including, without limitation, actions with
respect to contracts, intellectual property, product liability claims, employment, benefits and securities matters. We evaluate the probability of adverse
outcomes and, as applicable, estimate the amount of probable losses that may result from pending matters. Probable losses that can be reasonably estimated
are reflected in our consolidated financial statements. These recorded amounts are not material to our consolidated financial statements for any of the
periods presented in the accompanying consolidated financial statements. While it is not possible to predict the outcome of these matters with certainty, we
do not expect the results of any of these actions to have a material adverse effect on our results of operations or financial position. However, each of these
matters is subject to uncertainties, the actual losses may prove to be larger or smaller than the accruals reflected in our consolidated financial statements,
and we could incur judgments or enter into settlements of claims that could adversely affect our financial position, results of operations or cash flows.
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Item 4. Mine Safety Disclosures.
Not applicable.
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PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Our common stock has been listed on the Nasdaq Global Select Market under the symbol “CRNC” since October 2, 2019. Prior to that date, there
was no public trading market for our common stock. A “when-issued” trading market for our common stock existed between September 17, 2019 and
October 1, 2019 under the symbol “CRNCV”.
Holders of Common Stock
As of November 15, 2022, there were 486 holders of record of our common stock. This number does not reflect beneficial owners whose shares are
held in street name.
Dividend Policy
We have not paid any dividends since our formation. We may evaluate whether to pay cash dividends to our stockholders. The timing, declaration,
amount and payment of future dividends to stockholders, if any, will fall within the discretion of our Board. Among the items we would consider in
establishing a dividend policy are the capital needs of our business and opportunities to retain future earnings for use in the operation of our business and to
fund future growth. Additionally, the terms of the Senior Credit Facilities limit our ability to pay cash dividends. There can be no assurance that we will pay
a dividend in the future or continue to pay any dividend if we do commence the payment of dividends.
Performance Graph
The graph below compares the cumulative total shareholder return of our common stock for the last three years with the S&P MidCap 400, Russell
2000 and the S&P Software & Services Select indices. The information presented assumes an initial investment of $100 on October 2, 2019, the date our
common stock began regular-way trading on the Nasdaq Global Select Market. The graph shows the value that each of these investments would have had at
the end of each quarter.
The comparisons shown in the graph below are based upon historical data. We caution that the stock price performance shown in the graph below is
not necessarily indicative of, nor is it intended to forecast, the potential future performance of our common stock.
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Cerence Inc.
S&P MidCap 400
Russell 2000
S&P Software & Services Select
(1)
(1)
10/2/2019
3/31/2020
9/30/2020
3/31/2021
9/30/2021
3/31/2022
9/30/2022
$
$
$
$
100.00
100.00
100.00
100.00
$
$
$
$
100.33
77.03
77.93
90.53
$
$
$
$
318.37
99.33
101.90
131.74
$
$
$
$
583.58
139.25
150.07
173.65
$
$
$
$
626.12
140.92
148.98
189.66
$
$
$
$
235.18
143.75
87.90
162.70
$
$
$
$
102.61
117.60
70.92
118.19
(1) During fiscal year 2022, our common stock was removed from the S&P MidCap 400 Index. As such, we have included the Russell 2000 Index as our broad market equity index
comparative and will no longer include the S&P MidCap 400 Index. We believe the Russell 2000 Index generally includes companies with more comparable market capitalization to
us. The stock performance line graph and table includes a comparison of our cumulative total return to the selected indices ((i) the Russell 2000 Index and (ii) the S&P Software and
Select Services) and the discontinued index ((iii) the S&P MidCap 400 Index.)
Recent Sales of Unregistered Securities and Use of Proceeds
None.
Issuer Purchases of Equity Securities
Not applicable.
Item 6. Reserved.
Not applicable.
37
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Management’s Discussion and Analysis of Financial Condition and Results of Operations, (the "MD&A"), describes the principal factors, based on
management’s assessment, which have a material impact on our results of operations, financial condition and liquidity, as well as our critical accounting
policies and estimates. Our MD&A generally includes a discussion of results of operations, financial condition, liquidity and capital resources related to
year-over-year comparisons between fiscal years ended September 30, 2022, and 2021, as well as fiscal years ended September 30, 2021, and 2020.
The following discussion and analysis presented below should be read in conjunction with the Consolidated Financial Statements and the
corresponding notes, included elsewhere in this Form 10-K. The information presented in this section includes forward-looking statements, which are
described in detail in the section titled “Cautionary Statement Concerning Forward-Looking Statements.” The matters discussed in these forward-looking
statements are subject to risks, uncertainties, and other factors that could cause actual results to differ materially from those made, projected, or implied in
the forward-looking statements. See the section titled “Risk Factors” for a discussion of the risks, uncertainties, and assumptions associated with these
statements.
Overview
Cerence builds AI powered virtual assistants for the mobility/transportation market. Our primary target is the automobile market, but our solutions
can apply to all forms of transportation including but not limited to two-wheel vehicles, planes, tractors, cruise ships and elevators. Our solutions power
natural conversational and intuitive interactions between automobiles, drivers and passengers, and the broader digital world. We possess one of the world’s
most popular software platforms for building automotive virtual assistants. Our customers include all major OEMs or their tier 1 suppliers worldwide. We
deliver our solutions on a white-label basis, enabling our customers to deliver customized virtual assistants with unique, branded personalities and
ultimately strengthening the bond between automobile brands and end users. Our vision is to enable a more enjoyable, safer journey for everyone.
Our principal offering is our software platform, which our customers use to build virtual assistants that can communicate, find information and take
action across an expanding variety of categories. Our software platform has a hybrid architecture combining edge software components with cloud-
connected components. Edge software components are installed on a vehicle’s head unit and can operate without access to external networks and
information. Cloud-connected components are comprised of certain speech and natural language understanding related technologies, AI-enabled
personalization and context-based response frameworks, and content integration platform.
We generate revenue primarily by selling software licenses and cloud-connected services. Our edge software components are typically sold under a
traditional per unit perpetual software license model, in which a per unit fee is charged for each software instance installed on an automotive head unit. We
typically license cloud-connected software components in the form of a service to the vehicle end user, which is paid for in advance. In addition, we
generate professional services revenue from our work with our customers during the design, development and deployment phases of the vehicle model
lifecycle and through maintenance and enhancement projects. We have existing relationships with all major OEMs or their tier 1 suppliers, and while our
customer contracts vary, they generally represent multi-year engagements, giving us visibility into future revenue.
Impact of COVID-19 on our Business
The COVID-19 pandemic has resulted in, and may continue to result in, additional governmental restrictions and regulations, which has adversely
affected, and may continue to adversely affect, our business and financial results. For example, pandemic related lockdowns have been experienced in
China throughout fiscal year 2022, which resulted in loss of automotive production. We have seen, and anticipate that we will continue to see, supply chain
challenges in the automotive industry related to semiconductor devices that are used in automobiles. The current macroeconomic conditions have also
increased competition for qualified employees in our industry, particularly for members of our professional service teams, and we, along with automotive
OEMs, face significant competition in hiring and retaining them. In addition, a recession, depression or other sustained adverse market impact resulting
from COVID-19 or other market factors could materially and adversely affect our business, our access to needed capital and liquidity, and the value of our
common stock. Even after the COVID-19 pandemic has lessened or subsided, we may continue to experience adverse impacts on our business and financial
performance as a result of its global economic impact.
As the full impact of the COVID-19 pandemic on our business continues to develop, we are closely monitoring the global situation. We are unable
to predict the full impact that COVID-19 will have on our operations, liquidity and financial results, and, depending on the magnitude and duration of the
COVID-19 pandemic, such impact may be material. Accordingly, current results and financial condition discussed herein may not be indicative of future
operating results and trends. For further discussion of the business risks associated with COVID-19, see Item 1A, Risk Factors, within this Annual Report
on Form 10-K.
Business Trends
38
We experienced a 15.3% decrease in total revenue during fiscal year 2022, primarily driven by our license and connected services revenues. Our
license revenue is highly dependent on vehicle production. Over the course of the past year, third-party light vehicle production forecasts have decreased in
response to the ongoing semiconductor shortage, anticipated economic slowdown, conflict between Russia and Ukraine, and the effects of lockdowns in
mainland China driven by COVID-19. The decrease in our connected services revenues was primarily driven by the winding down of a legacy contract
acquired by Nuance through a 2013 acquisition.
During fiscal year 2022, total cost of revenues decreased by 3.9%, primarily driven by the decline in license and connected services revenues. Total
operating expenses increased by 84.1% during fiscal year 2022, primarily driven by a goodwill impairment charge of $213.7 million. Total operating
expenses excluding the goodwill charge decreased 10.7%, primarily driven by our cost savings initiatives. Restructuring and other costs, net increased $3.9
million, driven by the resignation of our former CEO and the resulting modification of certain stock-based awards, severance charges related to the
elimination of personnel, and charges resulting from the closure of facilities that will no longer be utilized.
Basis of Presentation
The accompanying consolidated financial statements have been prepared in accordance with GAAP, and the rules and regulations of the SEC. The
consolidated financial statements reflect all adjustments considered necessary for a fair presentation of the consolidated results of operations and financial
position for the fiscal years presented. All such adjustments are of a normal recurring nature.
The consolidated financial statements include the accounts of the Company, as well as those of its wholly owned subsidiaries. All significant
intercompany transactions and balances are eliminated in consolidation.
Key Metrics
In evaluating our financial condition and operating performance, we focus on revenue, operating margins, and cash flow from operations.
For the fiscal year 2022 as compared to fiscal year 2021:
•
•
•
Total revenue decreased by $59.3 million, or 15.3%, from $387.2 million to $327.9 million.
Operating margin decreased 71.9 percentage points from 15.7% to -56.2%.
Cash (used in) provided by operating activities changed by $76.5 million, or 102.9%, from cash provided by operating activities of $74.4
million to cash used in operating activities of $2.1 million.
For fiscal year 2021 as compared to fiscal year 2020:
•
•
•
Total revenue increased by $56.2 million, or 17.0%, from $331.0 million to $387.2 million.
Operating margin increased by 8.9 percentage points from 6.8% to 15.7%.
Cash provided by operating activities increased by $29.6 million, or 66.1%, from $44.8 million to $74.4 million.
39
Operating Results
The following table shows the Consolidated Statements of Operations for the fiscal years 2022, 2021 and 2020 (dollars in thousands):
Revenues:
License
Connected services
Professional services
Total revenues
Cost of revenues:
License
Connected services
Professional services
Amortization of intangibles
Total cost of revenues
Gross profit
Operating expenses:
Research and development
Sales and marketing
General and administrative
Amortization of intangible assets
Restructuring and other costs, net
Goodwill impairment
Total operating expenses
(Loss) income from operations
Interest income
Interest expense
Other income (expense), net
(Loss) income before income taxes
Provision for (benefit from) income taxes
Net (loss) income
2022
2021
2020
$
$
$
$
158,610 $
85,571
83,710
327,891
2,698 $
22,722
68,764
2,984
97,168
230,723
107,116 $
31,098
42,653
11,516
8,965
213,720
415,068
(184,345 )
1,007
(14,394 )
(1,019 )
(198,751 )
112,075
(310,826 ) $
202,183 $
109,534
75,465
387,182
3,544 $
25,727
64,287
7,516
101,074
286,108
112,070 $
38,683
56,979
12,690
5,092
—
225,514
60,594
109
(13,997 )
1,563
48,269
2,376
45,893 $
164,268
97,469
69,230
330,967
2,783
31,768
64,963
8,337
107,851
223,116
88,899
33,398
49,386
12,544
16,458
—
200,685
22,431
585
(22,737 )
(23,319 )
(23,040 )
(4,724 )
(18,316 )
Our revenue consists primarily of license revenue, connected services revenue and revenue from professional services. License revenue primarily
consists of license royalties associated with our edge software components. Our edge software components are typically sold under a traditional per unit
perpetual software license model, in which a per unit fee is charged for each software instance installed on an automotive head unit. Our contracts contain
variable, fixed prepaid or fixed minimum purchase commitment components. Revenue is recognized and cash is collected for variable contracts over the
license distribution period. The fixed contracts typically provide the customer with a price discount and can include the conversion of a variable contract
that is already in our variable backlog. Revenue for fixed contracts is recognized when the software is made available to the customer, which has typically
occurred at the time the contract is signed. Cash is typically expected to be collected for a fixed prepaid deal at the inception of the contract. Cash is
expected to be collected for a fixed minimum commitment deal over the license distribution period. During fiscal year 2023, we expect a reduction in
contributions from our fixed license contracts due to our decision to limit the level of such contracts on a go-forward basis. As a result, we expect a
negative impact on reported license revenue for fiscal year 2023. See Note 3 to the accompanying consolidated financial statements for further discussion
of our revenue, deferred revenue performance obligations and the timing of revenue recognition. Costs of license revenue primarily consist of third-party
royalty expenses for certain external technologies we leverage.
Connected services revenue represents the subscription fee that provides access to our connected services components, including the customization
and construction of our connected services solutions. We also derive revenue within our connected services business from usage contracts and there can be
instances where a customer purchases a software license that allows them to take possession of the software to enable hosting by the customer or a third-
party. Subscription and usage contracts typically have a term of one to five years. Subscription revenue is recognized over the subscription period and cash
is expected to be collected at the start of the subscription period. Usage based revenue is recognized and cash is collected as the service is used. If the
customer takes possession of the software to have it hosted by the customer or a third-party, revenue is recognized, and cash is collected at the time the
license is delivered. See Note 3 to the accompanying consolidated financial statements for further discussion of our revenue, deferred revenue
40
performance obligations and the timing of revenue recognition. Cost of connected service revenue primarily consists of labor costs of software delivery
services, infrastructure, and communications fees that support our connected services solutions.
Professional services revenue is primarily comprised of porting, integrating, and customizing our embedded solutions, with costs primarily
consisting of compensation for services personnel, contractors and overhead.
Our operating expenses include R&D, sales and marketing and general and administrative expenses. R&D expenses primarily consist of salaries,
benefits, and overhead relating to research and engineering staff. Sales and marketing expenses includes salaries, benefits, and commissions related to our
sales, product marketing, product management, and business unit management teams. General and administrative expenses primarily consist of personnel
costs for administration, finance, human resources, general management, fees for external professional advisers including accountants and attorneys, and
provisions for credit losses.
Amortization of acquired patents and core technology are included within cost of revenues whereas the amortization of other intangible assets, such
as acquired customer relationships, trade names and trademarks, are included within operating expenses. Customer relationships are amortized over their
estimated economic lives based on the pattern of economic benefits expected to be generated from the use of the asset. Other identifiable intangible assets
are amortized on a straight-line basis over their estimated useful lives.
Other components of operating expenses includes restructuring and other costs, net and goodwill impairment. Restructuring and other costs, net
include restructuring expenses as well as other charges that are unusual in nature, are the result of unplanned events, and arise outside the ordinary course of
our business. Goodwill impairment is recognized on a non-recurring basis when the carrying value of our reporting unit exceeds the estimated fair value.
Total other expense, net consists primarily of foreign exchange gains (losses), losses on the extinguishment of debt and interest expense related to
the Existing Facility, Notes, and Senior Credit Facilities.
Fiscal Year 2022 Compared with Fiscal Year 2021 and Fiscal Year 2021 Compared with Fiscal Year 2020
Total Revenues
The following table shows total revenues by product type, including the corresponding percentage change (dollars in thousands):
2022
% of Total
Year Ended September 30,
% of Total
2021
2020
% of Total
% Change
2022 vs. 2021
% Change
2021 vs. 2020
License
Connected services
Professional services
Total revenues
$ 158,610
85,571
83,710
$ 327,891
48.4% $ 202,183
26.1% 109,534
75,465
25.5%
$ 387,182
52.2% $ 164,268
28.3% 97,469
19.5% 69,230
$ 330,967
49.6%
29.5%
20.9%
(21.6 )%
(21.9 )%
10.9 %
(15.3 )%
23.1 %
12.4 %
9.0 %
17.0 %
Fiscal Year 2022 Compared with Fiscal Year 2021
Total revenues for fiscal year 2022 were $327.9 million, a decrease of $59.3 million, or 15.3%, from $387.2 million from fiscal year 2021. The
decrease in revenues was driven by decreases in licensing revenues and decreased demand for our connected services. Our license revenue is highly
dependent on vehicle production. Over the course of the past year, third-party light vehicle production forecasts have decreased in response to the ongoing
semiconductor shortage, anticipated economic slowdown, conflict between Russia and Ukraine, and the effects of lockdowns in mainland China driven by
COVID-19. While we cannot predict the full impact of the forecasted decline in production to our business, we do expect our operating results to be
negatively impacted.
License Revenue
License revenue for fiscal year 2022 was $158.6 million, a decrease of $43.6 million, or 21.6%, from $202.2 million for fiscal year 2021. Variable
license revenue decreased by $42.9 million primarily due to a lower volume of licensing royalties including consumption from fixed license contracts.
During fiscal year 2022, certain existing variable long-term contracts with our largest customer were converted into minimum purchase commitment deals
that accounted for $47.1 million of revenue during fiscal year 2022. The estimated future revenue related to these long-term contracts was previously
included in our variable backlog. The cash associated with these deals is expected to be collected over the distribution period, which could be up to five
years.
As a percentage of total revenue, license revenue decreased by 3.8 percentage points from 52.2% for fiscal year 2021 to 48.4% for fiscal year 2022.
41
Connected Services Revenue
Connected services revenue for fiscal year 2022 was $85.6 million, a decrease of $23.9 million, or 21.9%, from $109.5 million for fiscal year 2021.
This decrease was primarily driven by the winding down of a legacy contract acquired by Nuance through a 2013 acquisition. As a percentage of total
revenue, connected services revenue decreased by 2.2 percentage points from 28.3% for fiscal year 2021 to 26.1% for fiscal year 2022.
Professional Services Revenue
Professional services revenue for fiscal year 2022 was $83.7 million, an increase of $8.2 million, or 10.9%, from $75.5 million for fiscal year 2021.
This increase was primarily driven by our continued focus on integration and customization services related to our edge software and timing of services
rendered. As a percentage of total revenue, professional services revenue increased by 6.0 percentage points from 19.5% for fiscal year 2021 to 25.5% for
fiscal year 2022.
Fiscal Year 2021 Compared with Fiscal Year 2020
Total revenues for fiscal year 2021 were $387.2 million, an increase of $56.2 million, or 17.0%, from $331.0 million from fiscal year 2020. The
increase in revenues occurred across all product types.
License Revenue
License revenue for fiscal year 2021 was $202.2 million, an increase of $37.9 million, or 23.1%, from $164.3 million for fiscal year 2020. The
increase in license revenue was primarily due to a higher volume of licensing royalties as the global auto industry recovered from the COVID-19 pandemic
and OEMs increased production. As a percentage of total revenue, license revenue increased 2.6 percentage points from 49.6% for fiscal year 2020 to
52.2% for fiscal year 2021.
Connected Services Revenue
Connected services revenue for fiscal year 2021 was $109.5 million, an increase of $12.0 million, or 12.4%, from $97.5 million for fiscal year 2020.
This increase was primarily driven by continued market penetration from our connected services solutions as our customers increasingly deploy hybrid
solutions. As a percentage of total revenue, connected services revenue decreased by 1.2 percentage points from 29.5% for fiscal year 2020 to 28.3% for
fiscal year 2021.
Professional Services Revenue
Professional services revenue for fiscal year 2021 was $75.5 million, an increase of $6.3 million, or 9.0%, from $69.2 million for fiscal year 2020.
This increase was primarily driven by demand for the integration and customization services related to our edge software and the timing of services
rendered. As a percentage of total revenue, professional services revenue decreased by 1.4 percentage points from 20.9% for fiscal year 2020 to 19.5% for
fiscal year 2021.
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Total Cost of Revenues and Gross Profits
The following table shows total cost of revenues by product type and the corresponding percentage change (dollars in thousands):
Year Ended September 30,
2021
2020
2022
% Change
2022 vs. 2021
% Change
2021 vs. 2020
License
Connected services
Professional services
Amortization of intangibles
Total cost of revenues
$
$
2,698 $
3,544 $
22,722
25,727
68,764
64,287
7,516
2,984
97,168 $ 101,074 $
2,783
31,768
64,963
8,337
107,851
(23.9 )%
(11.7 )%
7.0 %
(60.3 )%
(3.9 )%
The following table shows total gross profit by product type and the corresponding percentage change (dollars in thousands):
License
Connected services
Professional services
Amortization of intangibles
Total gross profit
Year Ended September 30,
2021
198,639 $
83,807
11,178
(7,516 )
286,108 $
2022
155,912 $
62,849
14,946
(2,984 )
230,723 $
$
$
2020
161,485
65,701
4,267
(8,337 )
223,116
% Change
2022 vs. 2021
% Change
2021 vs. 2020
(21.5 )%
(25.0 )%
33.7 %
(60.3 )%
(19.4 )%
27.3 %
(19.0 )%
(1.0 )%
(9.8 )%
(6.3 )%
23.0 %
27.6 %
162.0 %
(9.8 )%
28.2 %
Fiscal Year 2022 Compared with Fiscal Year 2021
Total cost of revenues for fiscal year 2022 were $97.2 million, a decrease of $3.9 million, or 3.9%, from $101.1 million for fiscal year 2021.
We experienced a decrease in total gross profit of $55.4 million, or 19.4%, from $286.1 million to $230.7 million. The decrease was primarily
driven by a decline in license and connected services revenues.
Cost of License Revenue
Cost of license revenue for fiscal year 2022 was $2.7 million, a decrease of $0.8 million, or 23.9%, from $3.5 million for fiscal year 2021. Cost of
license revenues decreased due to third-party royalty expenses associated with external technologies we leverage in our edge software components. As a
percentage of total cost of revenue, cost of license revenue decreased by 0.7 percentage points from 3.5% for fiscal year 2021 to 2.8% for fiscal year 2022.
License gross profit decreased by $42.7 million, or 21.5%, primarily due to decreases in license revenues.
Cost of Connected Services Revenue
Cost of connected services revenue for fiscal year 2022 was $22.7 million, a decrease of $3.0 million, or 11.7%, from $25.7 million for fiscal year
2021. Cost of connected services revenue decreased primarily due to a $1.8 million decrease in salary-related expenditures, $1.3 million decrease in
amortization of costs previously deferred, $0.4 million decrease in internal allocated labor costs, $0.4 million decrease in stock-based compensation offset
by a $2.0 million increase in our cloud infrastructure costs. As a percentage of total cost of revenue, cost of connected service revenue decreased by 2.1
percentage points from 25.5% for fiscal year 2021 to 23.4% for fiscal year 2022.
Connected services gross profit decreased $21.0 million, or 25.0%, from $83.8 million to $62.8 million which was primarily driven by decreases in
connected services revenue due to the winding down of a legacy contract.
43
Cost of Professional Services Revenue
Cost of professional services revenue for fiscal year 2022 was $68.8 million, an increase of $4.5 million, or 7.0%, from $64.3 million for fiscal year
2021. Cost of professional services revenue increased primarily due to a $8.6 million increase in third-party contractor costs. The increase was partially
offset by a $2.2 million decrease in internal allocated labor, $1.6 million decrease in stock-based compensation costs, and $1.5 million decrease in
amortization of costs previously deferred. As a percentage of total cost of revenue, cost of professional services revenue increased by 7.2 percentage points
from 63.6% for fiscal year 2021 to 70.8% for fiscal year 2022.
Professional services gross profit increased $3.7 million, or 33.7%, from $11.2 million to $14.9 million which was primarily due to an increase in
professional services revenues and cost savings initiatives implemented during the first half of fiscal year 2022.
Fiscal Year 2021 Compared with Fiscal Year 2020
Our total cost of revenues for fiscal year 2021 was $101.1 million, a decrease of $6.8 million, or 6.3%, from $107.9 million for fiscal year 2020. The
decrease in cost of revenues resulted primarily from our cost savings initiatives implemented in the second half of fiscal 2020.
We experienced an increase in gross profit of $63.0 million, or 28.2%, from $223.1 million to $286.1 million. The increase was primarily driven by
our license and connected services solutions.
Cost of License Revenue
Cost of license revenue for fiscal year 2021 was $3.5 million, an increase of $0.7 million, or 27.3%, from $2.8 million for fiscal year 2020. Cost of
license revenues increased due to third-party royalty expenses associated with external technologies we leverage in our edge software components. As a
percentage of total cost of revenue, cost of license revenue increased by 0.9 percentage points from 2.6% for fiscal year 2020 to 3.5% for fiscal year 2021.
License gross profit increased $37.1 million, or 23.0%, from $161.5 million to $198.6 million, primarily due to license revenue growth during fiscal
year 2021.
Cost of Connected Services Revenue
Cost of connected services revenue for fiscal year 2021 was $25.7 million, a decrease of $6.1 million, or 19.0%, from $31.8 million for fiscal year
2020. Cost of connected services revenue decreased primarily due to a $1.8 million decrease in salary-related expenditures, $1.8 million decrease in third-
party contractor costs, $1.7 million decrease from lower internal allocated labor, $1.7 million decrease in depreciation costs, $0.7 million decrease in cloud
infrastructure costs and $0.5 million decrease in stock-based compensation. These decreases were partly offset by a $3.2 million increase in amortization of
costs previously deferred. As a percentage of total cost of revenue, cost of connected service revenue decreased by 4.0 percentage points from 29.5% for
fiscal year 2020 to 25.5% for fiscal year 2021.
Connected services gross profit increased $18.1 million, or 27.6%, from $65.7 million to $83.8 million, which was primarily due to connected
services revenue growth and cost savings initiatives.
Cost of Professional Services Revenue
Cost of professional services revenue for fiscal year 2021 was $64.3 million, a decrease of $0.7 million, or 1.0%, from $65.0 million for fiscal year
2020. Cost of professional services revenue decreased primarily due to $5.1 million in lower internal allocated labor, and a $1.9 million decrease in third-
party contractor cost. The decrease was partly offset by a $3.2 million increase in salary-related expenditures and $2.3 million increase in amortization of
costs previously deferred. As a percentage of total cost of revenue, cost of professional services revenue increased by 3.4 percentage points from 60.2% for
fiscal year 2020 to 63.6% for fiscal year 2021.
Professional services gross profit increased $6.9 million, or 162.0%, from $4.3 million to $11.2 million, which was primarily due to increases in
professional services revenue recognized and continued cost reduction measures.
Operating Expenses
The tables below show each component of operating expense. Other income (expense), net and provision for (benefit from) income taxes are non-
operating expenses and presented in a similar format (dollars in thousands).
44
R&D Expenses
Research and development
$
Fiscal Year 2022 Compared with Fiscal Year 2021
Year Ended September 30,
2021
112,070 $
$
2022
107,116
2020
88,899
% Change
2022 vs. 2021
% Change
2021 vs. 2020
(4.4 )%
26.1 %
Historically, R&D expenses are our largest operating expense as we continue to build on our existing software platforms and develop new
technologies. As part of our cost savings initiatives, we have moved expenses to lower-cost markets and in the second half of fiscal year 2022 shifted a
portion of our R&D workforce to support our professional service teams. R&D expenses for fiscal year 2022 were $107.1 million, a decrease of $5.0
million, or 4.4%, from $112.1 million for fiscal year 2021. The decrease in R&D expenses was primarily attributable to a $6.3 million decrease in stock-
based compensation and $3.9 million decrease in salary-related expenditures. The decrease was partially offset by a $2.9 million decrease in labor allocated
to support our customer projects, $1.0 million increase in third-party contractor costs, and $0.6 million increase in hardware and software costs. As a
percentage of total operating expenses, R&D expenses decreased by 23.9 percentage points from 49.7% for fiscal year 2021 to 25.8% for fiscal year 2022.
Fiscal Year 2021 Compared with Fiscal Year 2020
R&D expenses for fiscal year 2021 were $112.1 million, an increase of $23.2 million, or 26.1%, from $88.9 million for fiscal year 2020. The
increase in R&D expenses was primarily attributable to a $11.5 million increase in salary-related expenditures driven by headcount growth, as well as a
$5.4 million increase in third-party contractor costs, a $2.6 million increase in stock-based compensation and a $6.5 million reduction in labor allocated to
support our customer projects partially offset by a $5.1 million increase of capitalized cost associated with internally developed software. As a percentage
of total operating expenses, R&D expenses increased by 5.4 percentage points from 44.3% for fiscal year 2020 to 49.7% for fiscal year 2021.
Sales & Marketing Expenses
Sales and marketing
$
31,098 $
38,683 $
33,398
(19.6 )%
15.8 %
Year Ended September 30,
2021
2020
2022
% Change
2022 vs. 2021
% Change
2021 vs. 2020
Fiscal Year 2022 Compared with Fiscal Year 2021
Sales and marketing expenses for fiscal year 2022 were $31.1 million, a decrease of $7.6 million, or 19.6%, from $38.7 million for fiscal year 2021.
The decrease in sales and marketing expenses was primarily attributable to a $9.0 million decrease in stock-based compensation and a $0.5 million decrease
in salary-related expenses. The decrease was partly offset by an increase of $0.6 million related to travel expenditures and $0.6 million related to
commission expense. As a percentage of total operating expenses, sales and marketing expenses decreased by 9.7 percentage points from 17.2% for fiscal
year 2021 to 7.5% for fiscal year 2022.
Fiscal Year 2021 Compared with Fiscal Year 2020
Sales and marketing expenses for fiscal year 2021 were $38.7 million, an increase of $5.3 million, or 15.8%, from $33.4 million for fiscal year 2020.
The increase in sales and marketing expenses was primarily attributable to $3.1 million increase in salary-related expenses, $3.0 million increase related to
stock-based compensation, and $0.4 million related to commission expenses. The increase was partly offset by a reduction of $0.9 million in travel-related
expenditures as a result of COVID-19 and $0.7 million in marketing spending. As a percentage of total operating expenses, sales and marketing expenses
increased by 0.6 percentage points from 16.6% for fiscal year 2020 to 17.2% for fiscal year 2021.
General & Administrative Expenses
General and administrative
$
Year Ended September 30,
2021
56,979
$
$
2022
42,653
2020
49,386
% Change
2022 vs. 2021
% Change
2021 vs. 2020
(25.1 )%
15.4 %
45
Fiscal Year 2022 Compared with Fiscal Year 2021
General and administrative expenses for fiscal year 2022 were $42.7 million, a decrease of $14.3 million, or 25.1%, from $57.0 million for fiscal
year 2021. The decrease in general and administrative expenses was primarily attributable to a $19.2 million decrease in stock-based compensation. The
decrease was partially offset by a $2.4 million increase in professional service fees, a $0.9 million increase in salary-related expenses, a $0.7 million
increase in hardware and software costs, a $0.5 million increase in third-party contractor costs, and $0.4 million increase in travel-related expenditures. As
a percentage of total operating expenses, general and administrative expenses decreased by 15.0 percentage points from 25.3% for fiscal year 2021 to
10.3% for fiscal year 2022.
Fiscal Year 2021 Compared with Fiscal Year 2020
General and administrative expenses for fiscal year 2021 were $57.0 million, an increase of $7.6 million, or 15.4%, from $49.4 million for fiscal
year 2020. The increase in general and administrative expenses was primarily attributable to $7.5 million increase in stock-based compensation, a $2.1
million increase in depreciation, a $1.8 million increase in professional service fees and a $1.4 million increase in salary-related expenses. The increases
were partly offset by a $1.2 million decrease in third-party contractor costs, a $1.1 million decreases in bad debt expenses and $0.6 million decrease in
travel-related expenditures as a result of COVID-19. As a percentage of total operating expenses, general and administrative expenses increased by 0.7
percentage points from 24.6% for fiscal year 2020 to 25.3% for fiscal year 2021.
Amortization of Intangible Assets
Cost of revenues
Operating expense
Total amortization
Year Ended September 30,
2021
2022
2020
% Change
2022 vs. 2021
% Change
2021 vs. 2020
$
$
2,984 $
11,516
14,500 $
7,516 $
12,690
20,206 $
8,337
12,544
20,881
(60.3 )%
(9.3 )%
(28.2 )%
(9.8 )%
1.2 %
(3.2 )%
Fiscal Year 2022 Compared with Fiscal Year 2021
Intangible asset amortization for fiscal year 2022 was $14.5 million, a decrease of $5.7 million, or 28.2%, from $20.2 million for fiscal year 2021.
The decrease primarily relates to certain intangible assets having been fully amortized during fiscal year 2022.
As a percentage of total cost of revenues, intangible asset amortization within cost of revenues decreased by 4.3 percentage points from 7.4% for
fiscal year 2021 to 3.1% for fiscal year 2022. As a percentage of total operating expenses, intangible asset amortization expenses within operating expenses
decreased by 2.8 percentage points from 5.6% for fiscal year 2021 to 2.8% for fiscal year 2022.
Fiscal Year 2021 Compared with Fiscal Year 2020
Intangible asset amortization for fiscal year 2021 was $20.2 million, a decrease of $0.7 million, or 3.2%, from $20.9 million for fiscal year 2020.
The decrease primarily relates to certain intangible assets having been fully amortized during fiscal year 2020.
As a percentage of total cost of revenues, intangible asset amortization within cost of revenues decreased by 0.3 percentage points from 7.7% for
fiscal year 2020 to 7.4% for fiscal year 2021. As a percentage of total operating expenses, intangible asset amortization expenses within operating expenses
decreased by 0.7 percentage points from 6.3% for fiscal year 2020 to 5.6% for fiscal year 2021.
Other Components of Operating Expense
Restructuring and other costs, net
Goodwill impairment
$
$
8,965
213,720
$
$
5,092
-
$
$
16,458
-
76.1 %
100.0 %
(69.1 )%
—
Year Ended September 30,
2021
2020
2022
% Change
2022 vs. 2021
% Change
2021 vs. 2020
46
Fiscal Year 2022 Compared with Fiscal Year 2021
Restructuring and other costs, net for fiscal year 2022 were $9.0 million, an increase of $3.9 million, from $5.1 million for fiscal year 2021. The
increase in restructuring and other costs, net was primarily due to $4.0 million, net of $5.0 million in forfeitures, in stock-based compensation due to the
resignation of our former CEO and the resulting modification of certain stock-based awards, $2.6 million other one-time charges, $1.7 million severance
charge related to the elimination of personnel, and $0.7 million charge resulting from the closure of facilities that will no longer be utilized. As a percentage
of total operating expense, restructuring and other costs, net decreased by 0.1 percentage points from 2.3% for fiscal year 2021 to 2.2% for fiscal year 2022.
Goodwill impairment for the fiscal year ended September 30, 2022 was $213.7 million. At September 30, 2022, we concluded indicators of
impairment were present due to the current macroeconomic conditions, including continued declines in our stock price. The fair value of our reporting unit
was determined using a combination of the income approach and the market approach. We weighted the methodologies appropriately to estimate a fair
value of approximately $713.0 million as of September 30, 2022. The carrying value of our reporting unit exceeded the estimated fair value. Based upon
the results of the impairment test, we recorded a goodwill impairment charge of $213.7 million.
Fiscal Year 2021 Compared with Fiscal Year 2020
Restructuring and other costs, net for fiscal year 2021 were $5.1 million, a decrease of $11.4 million, from $16.5 million for fiscal year 2020. The
decrease in restructuring and other costs, net was primarily driven by a $10.6 million decrease in expenditures to establish the Cerence business as a
standalone public company. As a percentage of total operating expense, restructuring and other costs, net decreased by 5.9 percentage points from 8.2% for
fiscal year 2020 to 2.3% for fiscal year 2021.
Total Other Expense, Net
Year Ended September 30,
2021
2020
2022
% Change
2022 vs. 2021
% Change
2021 vs. 2020
Interest income
Interest expense
Other income (expense), net
Total other expense, net
$
$
1,007 $
(14,394 )
(1,019 )
(14,406 ) $
109 $
(13,997 )
1,563
(12,325 ) $
585
(22,737 )
(23,319 )
(45,471 )
823.9 %
2.8 %
(165.2 )%
16.9 %
(81.4 )%
(38.4 )%
(106.7 )%
(72.9 )%
Fiscal Year 2022 Compared with Fiscal Year 2021
Total other expense, net for fiscal year 2022 was $14.4 million, an increase of $2.1 million from $12.3 million of expense for fiscal year 2021. The
increase in interest income was primarily attributable to returns on investments. The increase in interest expense was primarily attributable to a higher
applicable interest rate on our Term Loan Facility. The change in other income (expense), net was primarily driven by foreign exchange losses.
Fiscal Year 2021 Compared with Fiscal Year 2020
Total other expense, net for fiscal year 2021 was $12.3 million, a decrease of $33.2 million from $45.5 million of expense for fiscal year 2020. The
decrease in interest expense and other income (expense), net is primarily attributed to our debt refinancing in June 2020. During fiscal year 2020, we
recognized a $19.3 million loss on the extinguishment of debt.
Provision for (Benefit from) Income Taxes
Provision for (benefit from) income taxes
$
Effective income tax rate%
2022
112,075 $
(56.4 )%
Year Ended September 30,
2021
2020
% Change
2022 vs. 2021
% Change
2021 vs. 2020
2,376 $
4.9 %
(4,724 )
20.5 %
47
4617.0 %
(150.3 )%
Fiscal Year 2022 Compared with Fiscal Year 2021
Our effective income tax rate for fiscal year 2022 was (56.4)%, compared to 4.9% for fiscal year 2021. Consequently, our provision for income taxes
for fiscal year 2022 was $112.1 million, a net change of $109.7 million, or 4617.0%, from a provision for income taxes of $2.4 million for fiscal year 2021.
The effective tax rate for the fiscal year 2022 differed from the U.S. federal statutory rate of 21.0%, primarily due to the establishment of a valuation
allowance in a foreign jurisdiction, impairment of book goodwill, the tax impacts of stock-based compensation, and our composition of jurisdictional
earnings.
Fiscal Year 2021 Compared with Fiscal Year 2020
Our effective income tax rate for fiscal year 2021 was 4.9%, compared to 20.5% for fiscal year 2020. Consequently, our provision for income taxes
for fiscal year 2021 was $2.4 million, a net change of $7.1 million, or 150.3%, from a benefit from income taxes of $4.7 million for fiscal year 2020. The
effective income tax rate for fiscal year 2021 differed from the U.S. statutory rate of 21.0% primarily due to our composition of jurisdictional earnings, U.S.
inclusions of foreign taxable income as a result of changes in applicable tax laws in 2017, and an income tax benefit of approximately $15.9 million related
to an increase in tax rates in the Netherlands enacted in the first quarter of fiscal year 2021.
Liquidity and Capital Resources
Financial Condition
As of September 30, 2022, we had $126.7 million in cash, cash equivalents, and marketable securities. Cash equivalents include highly liquid
investments that are readily convertible to known amounts of cash and have original maturities of three months or less. Marketable securities include
commercial paper, corporate bonds, and government securities. As of September 30, 2022, our net working capital, excluding deferred revenue and
deferred costs, was $146.1 million. This balance is representative of the short-term net cash inflows based on the working capital at that date.
During the fiscal year ended September 30, 2022, we converted existing variable long-term contracts into minimum purchase commitment deals
with our largest customer. These minimum commitment deals accounted for $47.1 million of revenues during fiscal year 2022. The cash associated with
these deals is expected to be collected over the distribution period, which could be up to five years. The estimated future revenues related to these long-term
contracts was previously included in our variable backlog.
Sources and Material Cash Requirements
Our principal sources of liquidity are our cash, cash equivalents, and marketable securities, as well as the cash flows we generated from our
operations. The primary uses of cash include costs of revenues, funding of R&D activities, capital expenditures and debt obligations.
Our ability to fund future operating needs will depend on our ability to generate positive cash flows from operations and finance additional funding
in the capital markets as needed. Based on our expectation to generate positive cash flows and the $126.7 million of cash, cash equivalents and marketable
securities as of September 30, 2022, we believe we will be able to meet our liquidity needs over the next 12 months. We believe we will meet longer-term
expected future cash requirements and obligations, through a combination of cash flows from operating activities, available cash balances, and available
credit via our Revolving Facility (as described below).
The following table presents our material cash requirements for future periods:
Material Cash Requirements Due by the Year Ended September 30,
(a)
Notes
Interest payable on the Notes
Senior Credit Facilities
Interest payable on Senior Credit Facilities
Operating leases
Operating leases under restructuring
Finance leases
Total material cash requirements
(c)
(b)
$
$
2024 - 2025 2026 - 2027
$
$
175,000
8,768
100,000
7,472
7,979
263
779
300,261
$
Thereafter
-
-
-
-
819
-
-
819
$
$
Total
175,000
14,014
110,938
13,265
17,582
545
1,308
332,652
$
$
-
-
-
-
3,214
366
53
3,633
2023
-
5,246
10,938
5,793
5,570
(84 )
476
27,939
$
48
Interest per annum is due and payable semiannually and is determined based on the outstanding principal as of September 30, 2022.
Interest per annum is due and payable monthly and is determined based on the outstanding principal as of September 30, 2022.
(a)
(b)
(c) Contractual lease commitments are shown net of sublease income related to certain facilities. As of September 30, 2022, we anticipate sublease
income of $1.6 million through fiscal year 2024.
We sponsor certain defined benefit plans that are offered primarily by certain of our foreign subsidiaries. Many of these plans are required by local
regulatory requirements. We may deposit funds for these plans with insurance companies, third-party trustees, or into government-managed accounts
consistent with local regulatory requirements, as applicable. The aggregate net liability of our defined benefit plans as of September 30, 2022 was $4.9
million.
As the impact of the COVID-19 pandemic on the economy and our operations evolve, we will continue to assess our liquidity needs. Should we
need to secure additional sources of liquidity, we believe that we could finance our needs through the issuance of equity securities or debt offerings.
However, we cannot guarantee that we will be able to obtain financing through the issuance of equity securities or debt offerings on reasonable terms. The
COVID-19 pandemic has negatively impacted the global economy and created significant volatility and disruption of financial markets. An extended period
of economic disruption could materially affect our business, results of operations, and financial condition, including our ability to meet debt covenants or
make payments, and access to sources of liquidity.
3.00% Senior Convertible Notes due 2025
On June 2, 2020, in an effort to refinance our debt structure, we issued $175.0 million in aggregate principal amount of 3.00% Convertible Senior
Notes due 2025 (the “Notes”), including the initial purchasers’ exercise in full of their option to purchase an additional $25.0 million principal amount of
the Notes, between us and U.S. Bank National Association, as trustee (the “Trustee”), in a private offering to qualified institutional buyers pursuant to Rule
144A under the Securities Act of 1933, as amended. The net proceeds from the issuance of the Notes were $169.8 million after deducting transaction costs.
We used net proceeds from the issuance of the Notes to repay a portion of our indebtedness under the Credit Agreement, dated October 1, 2019, by and
among us, the lenders and issuing banks party thereto and Barclays Bank PLC, as administrative agent (the “Existing Facility”).
The Notes are senior, unsecured obligations and will accrue interest payable semiannually in arrears on June 1 and December 1 of each year,
beginning on December 1, 2020, at a rate of 3.00% per year. The Notes will mature on June 1, 2025, unless earlier converted, redeemed, or repurchased.
The Notes are convertible into cash, shares of our common stock or a combination of cash and shares of our common stock, at our election.
A holder of Notes may convert all or any portion of its Notes at its option at any time prior to the close of business on the business day immediately
preceding March 1, 2025 only under the following circumstances: (1) during any fiscal quarter commencing after the fiscal quarter ending on September
30, 2020 (and only during such fiscal quarter), if the last reported sale price of our common stock for at least 20 trading days (whether or not consecutive)
during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding fiscal quarter is greater than or
equal to 130% of the conversion price on each applicable trading day; (2) during the five business day period after any ten consecutive trading day period
(the “measurement period”) in which the “trading price” per $1,000 principal amount of Notes for each trading day of the measurement period was less
than 98% of the product of the last reported sale price of our common stock and the conversion rate on each such trading day; (3) if we call such Notes for
redemption, at any time prior to the close of business on the business day immediately preceding the redemption date; or (4) upon the occurrence of
specified corporate events. On or after March 1, 2025 until the close of business on the second scheduled trading day immediately preceding the maturity
date, a holder may convert all or any portion of its Notes at any time, regardless of the foregoing.
The conversion rate will initially be 26.7271 shares of our common stock per $1,000 principal amount of Notes (equivalent to an initial conversion
price of approximately $37.42 per share of our common stock). The conversion rate is subject to adjustment in some events but will not be adjusted for any
accrued and unpaid interest. In addition, following certain corporate events that occur prior to the maturity date or if we deliver a notice of redemption, we
will, in certain circumstances, increase the conversion rate for a holder who elects to convert its Notes in connection with such a corporate event or convert
its Notes called for redemption in connection with such notice of redemption, as the case may be.
49
We may not redeem the Notes prior to June 5, 2023. We may redeem for cash all or any portion of the Notes, at our option, on a redemption date
occurring on or after June 5, 2023 and on or before the 31st scheduled trading day immediately before the maturity date, if the last reported sale price of our
common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive), including the trading
day immediately preceding the date on which we provide notice of redemption, during any 30 consecutive trading day period ending on, and including, the
trading day immediately preceding the date on which we provide notice of redemption at a redemption price equal to 100% of the principal amount of the
notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date. No sinking fund is provided for the Notes.
If we undergo a “fundamental change”, subject to certain conditions, holders may require us to repurchase for cash all or any portion of their Notes
at a fundamental change repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid interest to,
but excluding, the fundamental change repurchase date.
The indenture governing the Notes contains customary terms and covenants, including that upon certain events of default occurring and continuing,
either the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding may declare the entire principal amount
of all the Notes plus accrued special interest, if any, to be immediately due and payable.
At issuance, we accounted for the Notes by allocating proceeds from the Notes into debt and equity components according to the accounting
standards for convertible debt instruments that may be fully or partially settled in cash upon conversion. The initial carrying amount of the debt component,
which approximates its fair value, was estimated by using an interest rate for nonconvertible debt, with terms similar to the Notes. The excess of the
principal amount of the Notes over the fair value of the debt component was recorded as a debt discount and a corresponding increase in additional paid-in
capital. The debt discount is accreted to the carrying value of the Notes over their expected term as interest expense using the interest method. Upon
issuance of the Notes, we recorded $155.3 million as debt and $19.7 million as additional paid-in capital in stockholders’ equity.
We incurred transaction costs of $5.6 million relating to the issuance of the Notes. In accounting for these costs, we allocated the costs of the
offering between debt and equity in proportion to the fair value of the debt and equity recognized. The transaction costs allocated to the debt component of
approximately $5.0 million were recorded as a direct deduction from the face amount of the Notes and are being amortized as interest expense over the
term of the Notes using the interest method. The transaction costs allocated to the equity component of approximately $0.6 million were recorded as a
decrease in additional paid-in capital.
The interest expense recognized related to the Notes for the fiscal years ended September 30, 2022, 2021 and 2020 was as follows (dollars in
thousands):
Contractual interest expense
Amortization of debt discount
Amortization of issuance costs
Total interest expense related to the Notes
$
$
2022
5,246
3,755
944
9,945
$
$
Year Ended
September 30,
2021
5,246 $
3,527
887
9,660 $
2020
1,753
1,131
285
3,169
The conditional conversion feature of the Notes was triggered during the fiscal year ended September 30, 2022, and the Notes were not convertible
as of September 30, 2022, with no Notes being converted. Whether any of the Notes will be converted in future quarters will depend on the satisfaction of
one or more of the conversion conditions in the future. If one or more holders elect to convert their Notes at a time when any such Notes are convertible,
unless we elect to satisfy our conversion obligation by delivering solely shares of our common stock (other than paying cash in lieu of delivering any
fractional shares), we would be required to settle a portion or all of our conversion obligation through the payment of cash, which could adversely affect our
liquidity.
50
Senior Credit Facilities
On June 12, 2020 (the “Financing Closing Date”), in connection with our effort to refinance our existing indebtedness, we entered into a Credit
Agreement, by and among the Company (the "Borrower"), the lenders and issuing banks party thereto and Wells Fargo Bank, N.A., as administrative agent
(the “Credit Agreement”), consisting of a four-year senior secured term loan facility in the aggregate principal amount of $125.0 million (the “Term Loan
Facility”). The net proceeds from the issuance of the Term Loan Facility were $123.0 million, which together with proceeds from the Notes was intended to
pay in full all indebtedness under the Existing Facility, and paid fees and expenses in connection with the Senior Credit Facilities. We also entered into a
senior secured first-lien revolving credit facility in an aggregate principal amount of $50.0 million (the “Revolving Facility” and, together with the Term
Loan Facility, the “Senior Credit Facilities”), which shall be drawn on in the event that our working capital and other cash needs are not supported by our
operating cash flow. As of September 30, 2022 and 2021, there were no amounts outstanding under the Revolving Facility.
Our obligations under the Credit Agreement are jointly and severally guaranteed by certain of our existing and future direct and indirect wholly
owned domestic subsidiaries, subject to certain exceptions customary for financings of this type. All obligations are secured by substantially all of our
tangible and intangible personal property and material real property, including a perfected first-priority pledge of all (or, in the case of foreign subsidiaries
or subsidiaries (“FSHCO”) that own no material assets other than equity interests in foreign subsidiaries that are “controlled foreign corporations” or other
FSHCOs, 65%) of the equity securities of our subsidiaries held by any loan party, subject to certain customary exceptions and limitations.
On December 17, 2020 (the “Amendment No. 1 Effective Date”), we entered into Amendment No. 1 to the Credit Agreement (the “Amendment”).
The Amendment extended the scheduled maturity date of the revolving credit and term facilities from June 12, 2024 to April 1, 2025.
The Amendment revised certain interest rates in the Credit Agreement. Following delivery of a compliance certificate for the first full fiscal quarter
after the Amendment No. 1 Effective Date, the applicable margins for the revolving credit and term facilities is subject to a pricing grid based upon the net
total leverage ratio as follows (i) if the net total leverage ratio is greater than 3.00 to 1.00, the applicable margin is LIBOR plus 3.00% or ABR plus 2.00%;
(ii) if the net total leverage ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, the applicable margin is LIBOR plus 2.75% or ABR plus
1.75%; (iii) if the net total leverage ratio is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, the applicable margin is LIBOR plus 2.50% or
ABR plus 1.50%; (iv) if the net total leverage ratio is less than or equal to 2.00 to 1.00 but greater than 1.50 to 1.00, the applicable margin is LIBOR plus
2.25% or ABR plus 1.25%; and (v) if the net total leverage ratio is less than or equal to 1.50 to 1.00, the applicable margin is LIBOR plus 2.20% or ABR
plus 1.00%. As a result of the Amendment, the applicable LIBOR floor was reduced from 0.50% to 0.00%.
From the Amendment No. 1 Effective Date until the fiscal quarter ended December 31, 2020, the interest rate was LIBOR plus 2.50%. For the three
months ended March 31, 2021, the interest rate was LIBOR plus 2.25%. For the three months ended June 30, 2021, the interest rate was LIBOR plus
2.25%. For the three months ended September 30, 2021, the interest rate was LIBOR plus 2.25%. For the three and twelve months ended September 30,
2022, the interest rate was LIBOR plus 2.25%. Total interest expense relating to the Senior Credit Facilities for the fiscal year ended September 30, 2022,
2021 and 2020 was $4.3 million, $4.1 million and $1.5 million, respectively, reflecting the coupon and accretion of the discount.
In addition, the quarterly commitment fee required to be paid based on the unused portion of the Revolving Facility is subject to a pricing grid based
upon the net total leverage ratio as follows (i) if the net total leverage ratio is greater than 3.00 to 1.00, the unused line fee is 0.500%; (ii) if the net total
leverage ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, the unused line fee is 0.450%; (iii) if the net total leverage ratio is less than
or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, the unused line fee is 0.400%; (iv) if the net total leverage ratio is less than or equal to 2.00 to 1.00 but
greater than 1.50 to 1.00, the unused line fee is 0.350%; and (v) if the net total leverage ratio is less than or equal to 1.50 to 1.00, the unused line fee is
0.300%.
The Amendment revised the amount by which we are obligated to make quarterly principal payments. Through the fiscal quarter ending December
31, 2022, we are obligated to make quarterly principal payments in an aggregate amount equal to 1.25% of the original principal amount of the Term Loan
Facility. From the fiscal quarter ending March 31, 2023 and for each fiscal quarter thereafter, we are obligated to make quarterly principal payments in an
aggregate amount equal to 2.50% of the original principal amount of the Term Loan Facility, with the balance payable at the maturity date thereof.
Borrowings under the Credit Agreement are prepayable at our option without premium or penalty. We may request, and each lender may agree in its
sole discretion, to extend the maturity date of all or a portion of the Senior Credit Facilities subject to certain conditions customary for financings of this
type. The Credit Agreement also contains certain mandatory prepayment provisions in the event that we incur certain types of indebtedness or receives net
cash proceeds from certain non-ordinary course asset sales or other dispositions of property, in each case subject to terms and conditions customary for
financings of this type.
51
The Credit Agreement contains certain affirmative and negative covenants customary for financings of this type that, among other things, limit our
and our subsidiaries’ ability to incur additional indebtedness or liens, to dispose of assets, to make certain fundamental changes, to designate subsidiaries as
unrestricted, to make certain investments, to prepay certain indebtedness and to pay dividends, or to make other distributions or redemptions/repurchases, in
respect of our and our subsidiaries’ equity interests. In addition, the Credit Agreement contains financial covenants, each tested quarterly, (1) a net secured
leveraged ratio of not greater than 3.25 to 1.00; (2) a net total leverage ratio of not greater than 4.25 to 1.00; and (3) minimum liquidity of at least $75
million. The Credit Agreement also contains events of default customary for financings of this type, including certain customary change of control events.
As of September 30, 2022 and 2021, we were in compliance with all Credit Agreement covenants.
On November 22, 2022 (the "Amendment No. 2 Effective Date"), we entered into Amendment No. 2 to the Credit Agreement ("Amendment No.
2"). Amendment No. 2 modified certain financial covenants between the fiscal quarter ended March 31, 2023 to the fiscal quarter ended December 31,
2023 (the "covenant adjustment period"). During the covenant adjustment period, each tested quarterly, we are required to maintain (1) a net secured
leveraged ratio of not greater than 4.25 to 1.00; (2) minimum liquidity of at least $125 million; and (3) aggregate capital expenditures less than $7.5
million. The net total leverage ratio will be waived during the covenant adjustment period. At the conclusion of the covenant adjustment period, the original
financial covenants will resume.
Amendment No. 2 revised certain interest rates in the Credit Agreement. The applicable margins for the revolving credit and term facilities is subject
to a pricing grid based upon the net total leverage ratio as follows (i) if the net total leverage ratio is greater than 3.00 to 1.00, the applicable margin is
SOFR plus 3.00% or ABR plus 2.00%; (ii) if the net total leverage ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, the applicable
margin is SOFR plus 2.75% or ABR plus 1.75%; (iii) if the net total leverage ratio is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, the
applicable margin is SOFR plus 2.50% or ABR plus 1.50%; (iv) if the net total leverage ratio is less than or equal to 2.00 to 1.00 but greater than 1.50 to
1.00, the applicable margin is SOFR plus 2.25% or ABR plus 1.25%; and (v) if the net total leverage ratio is less than or equal to 1.50 to 1.00, the
applicable margin is SOFR plus 2.20% or ABR plus 1.00%. From the Amendment No. 2 Effective Date until delivery of the first compliance certificate
after the covenant adjustment period, the applicable margin will be SOFR plus 3.00% or ABR plus 2.00%.
Cash Flows
Cash flows from operating, investing and financing activities for the fiscal years ended September 30, 2022, 2021, and 2020, as reflected in the
audited Consolidated Statements of Cash Flows included in Item 8 of this Form 10-K, are summarized in the following table (dollars in thousands):
Net cash (used in) provided by operating activities
Net cash used in investing activities
Net cash (used in) provided by financing activities
Effect of foreign currency exchange rates on cash
and cash equivalents
Net changes in cash and cash equivalents
Year Ended September 30,
$
2022
(2,138 ) $
(10,565 )
(19,606 )
2021
2020
44,789
74,389 $
(41,631 )
(30,675 )
(41,505 ) 121,553
(1,272 )
(33,581 ) $
1,108
400
(7,639 ) $ 136,067
$
% Change
2022 vs. 2021
% Change
2021 vs. 2020
(102.9 )%
(74.6 )%
(52.8 )%
(214.8 )%
339.6 %
66.1 %
35.7 %
(134.1 )%
177.0 %
(105.6 )%
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Net Cash (Used in) Provided by Operating Activities
Fiscal Year 2022 Compared with Fiscal Year 2021
Net cash used in operating activities for fiscal year 2022 was $2.1 million, a net change of $76.5 million, or 102.9%, from net cash provided by
operating activities of $74.4 million for fiscal year 2021 . The change in cash flows were primarily due to:
•
•
•
A decrease of $72.5 million from income before non-cash charges;
A decrease of $21.4 million due to unfavorable changes in working capital primarily related to cash inflows from accounts receivables; and
An increase of $17.4 million from changes in deferred revenue.
Deferred revenue represents a significant portion of our net cash provided by operating activities and, depending on the nature of our contracts with
customers, this balance can fluctuate significantly from period to period. We expect our deferred revenue balances to decrease in the future, including due
to a wind-down of a legacy connected service relationship with a major OEM, since the majority of cash from the contract has been collected. We do not
expect any changes in deferred revenue to affect our ability to meet our obligations.
Fiscal Year 2021 Compared with Fiscal Year 2020
Net cash provided by operating activities for fiscal year 2021 was $74.4 million, an increase of $29.6 million, or 66.1%, from net cash provided by
operating activities of $44.8 million for fiscal year 2020. The change in cash flows were primarily due to:
•
•
•
An increase of $62.0 million from income before non-cash charges;
A decrease of $22.7 million due to unfavorable changes in working capital primarily related to cash outflows from accrued expenses and other
liabilities; and
A decrease of $9.7 million from changes in deferred revenue.
Deferred revenue represents a significant portion of our net cash provided by operating activities and, depending on the nature of our contracts with
customers, this balance can fluctuate significantly from period to period. We expect our deferred revenue balances to decrease in the future, including due
to a wind-down of a legacy connected service relationship with a major OEM, since the majority of cash from the contract has been collected. We do not
expect any changes in deferred revenue to affect our ability to meet our obligations.
Net Cash Used in Investing Activities
Fiscal Year 2022 Compared with Fiscal Year 2021
Net cash used in investing activities for the fiscal year 2022 was $10.6 million, a decrease of $31.0 million, or 74.6%, from $41.6 million for fiscal
year 2021. The change in cash flows were driven by:
•
•
•
•
An increase of $31.6 million net proceeds from the sale of marketable securities;
A decrease of $2.0 million paid in connection with equity investments;
A decrease of $2.0 million paid related to debt securities; and
An increase of $5.4 million in capital expenditures.
Fiscal Year 2021 Compared with Fiscal Year 2020
Net cash used in investing activities for fiscal year 2021 was $41.6 million, an increase of $10.9 million, or 35.7%, from $30.7 million for fiscal year
2020. The change in cash flows were driven by:
•
•
•
•
$26.1 million net purchase of marketable securities for fiscal year 2021;
$2.6 million paid in connection with equity investments during the fiscal year 2021;
$2.0 million paid related to debt securities; and
A decrease of $7.0 million in capital expenditures.
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Net Cash (Used in) Provided by Financing Activities
Fiscal Year 2022 Compared with Fiscal Year 2021
Net cash used in financing activities for the fiscal year 2022 was $19.6 million, a net change of $21.9 million, from cash used in financing activities
of $41.5 million for fiscal year 2021 . The change in cash flows were primarily due to:
• An increase of $24.5 million in proceeds from the issuance of our common stock; and
• An increase of $3.2 million in payments of tax related withholdings due to the net settlement of equity awards.
Fiscal Year 2021 Compared with Fiscal Year 2020
Net cash used in financing activities for fiscal year 2021 was $41.5 million, a net change of $163.1 million, from cash provided by financing
activities of $121.6 million for fiscal year 2020. The change in cash flows were primarily due to:
•
•
•
•
•
•
$249.7 million proceeds from the issuance of the Existing Facility during the first quarter of fiscal year 2020;
$169.8 million proceeds from the issuance of the Notes during the quarter ended June 30, 2020;
$123.0 million proceeds from the issuance of the Senior Credit Facilities during the quarter ended June 30, 2020;
$271.6 million principal payments of long-term debt during the fiscal year 2020;
$153.0 million distribution paid to Nuance related to our Spin-Off during the first quarter of fiscal year 2020; and
$45.8 million payment of tax related withholdings due to the net settlement of equity awards during the fiscal year 2021.
Issued Accounting Standards Not Yet Adopted
Refer to Note 2 to the accompanying audited Consolidated Financial Statements included elsewhere in this Annual Report on Form 10-K for a
description of certain issued accounting standards that have not been adopted by us and may impact our results of operations in future reporting periods.
Critical Accounting Policies, Judgments and Estimates
The preparation of financial statements in conformity with GAAP, requires management to make estimates and assumptions that have a material
impact on the reported amounts of assets and liabilities, and the disclosure of contingent assets and liabilities at the date of the financial statements, and the
reported amounts of revenue and expenses during the reporting period. On an ongoing basis, we evaluate our estimates, assumptions and judgments,
including those related to revenue recognition; allowance for credit losses and doubtful accounts; accounting for deferred costs; accounting for internally
developed software; the valuation of goodwill and intangible assets; accounting for business combinations; accounting for stock-based compensation;
accounting for income taxes; accounting for leases; accounting for convertible debt; and loss contingencies. Our management bases its estimates on
historical experience, market participant fair value considerations, projected future cash flows, and various other factors that are believed to be reasonable
under the circumstances. Actual results could differ from these estimates.
We believe the following critical accounting policies most significantly affect the portrayal of our financial condition and the results of our
operations. These policies require our most difficult and subjective judgments.
Revenue Recognition
We primarily derive revenue from the following sources: (1) royalty-based software license arrangements, (2) connected services, and (3)
professional services. Revenue is reported net of applicable sales and use tax, value-added tax and other transaction taxes imposed on the related transaction
including mandatory government charges that are passed through to our customers. We account for a contract when both parties have approved and
committed to the contract, the rights of the parties are identified, payment terms are identified, the contract has commercial substance and collectability of
consideration is probable.
Our arrangements with customers may contain multiple products and services. We account for individual products and services separately if they are
distinct—that is, if a product or service is separately identifiable from other items in the contract and if a customer can benefit from it on its own or with
other resources that are readily available to the customer.
We recognize revenue after applying the following five steps:
•
identification of the contract, or contracts, with a customer;
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•
•
•
•
identification of the performance obligations in the contract, including whether they are distinct within the context of the contract;
determination of the transaction price, including the constraint on variable consideration;
allocation of the transaction price to the performance obligations in the contract; and
recognition of revenue when, or as, the performance obligations are satisfied.
We allocate the transaction price of the arrangement based on the relative estimated standalone selling price (“SSP”) of each distinct performance
obligation. In determining SSP, we maximize observable inputs, when possible. Since prices vary from customer to customer based on customer
relationship, volume discount and contract type, in instances where the SSP is not directly observable, we estimate SSP by considering a number of data
points, including cost of developing and supplying each performance obligation; types of offerings; and gross margin objectives and pricing practices, such
as contractually stated prices, discounts offered, and applicable price lists.
We only include estimated amounts in the transaction price to the extent it is probable that a significant reversal of cumulative revenue recognized
will not occur when the uncertainty associated with the variable consideration is resolved. We reduce transaction prices for estimated returns that represent
variable consideration under ASC 606, which we estimate based on historical return experience and other relevant factors, and record a corresponding
refund liability as a component of accrued expenses and other current liabilities. Other forms of contingent revenue or variable consideration are infrequent.
Revenue is recognized when control of these products or services is transferred to our customers, in an amount that reflects the consideration we
expect to be entitled to in exchange for those products or services.
We assess the timing of the transfer of products or services to the customer as compared to the timing of payments to determine whether a significant
financing component exists. In accordance with the practical expedient in ASC 606-10-32-18, we do not assess the existence of a significant financing
component when the difference between payment and transfer of deliverables is a year or less. If the difference in timing arises for reasons other than the
provision of finance to either the customer or us, no financing component is deemed to exist. The primary purpose of our invoicing terms is to provide
customers with simplified and predictable ways of purchasing our services, not to receive or provide financing from or to customers. We do not consider
set-up fees nor other upfront fees paid by our customers to represent a financing component.
Reimbursements for out-of-pocket costs generally include, but are not limited to, costs related to transportation, lodging and meals. Revenue from
reimbursed out-of-pocket costs is accounted for as variable consideration.
Performance Obligations
License
Embedded software and technology licenses operate without access to the external networks and information. Embedded licenses sold with non-
distinct professional services to customize and/or integrate the underlying software and technology are accounted for as a combined performance
obligation. Revenue from the combined performance obligation is recognized over time based upon the progress towards completion of the project, which
is measured based on the labor hours already incurred to date as compared to the total estimated labor hours.
Revenue from distinct embedded software and technology licenses, which do not require professional services to customize and/or integrate the
software license, is recognized at the point in time when the software and technology is made available to the customer and control is transferred. For
income statement presentation purposes, we separate distinct embedded license revenue from professional services revenue based on their relative SSPs.
Revenue from embedded software and technology licenses sold on a royalty basis, where the license of non-exclusive intellectual property is the
predominant item to which the royalty relates, is recognized in the period the usage occurs in accordance with ASC 606-10-55-65(A).
For royalty arrangements that include fixed consideration related to a minimum usage guarantees, the fixed consideration is recognized when the
software is made available to the customer.
Connected Services
Connected services, which allow our customers to use the hosted software over the contract period without taking possession of the software, are
provided on a usage basis as consumed or on a fixed fee subscription basis. Subscription basis revenue represents a single promise to stand-ready to provide
access to our connected services. Our connected services contract terms generally range from one to five years.
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As each day of providing services is substantially the same and the customer simultaneously receives and consumes the benefits as access is
provided, we have determined that our connected services arrangements are a single performance obligation comprised of a series of distinct services.
These services include variable consideration, typically a function of usage. We recognize revenue as each distinct service period is performed (i.e.,
recognized as incurred).
Our connected service arrangements generally include services to develop, customize, and stand-up applications for each customer. In determining
whether these services are distinct, we consider dependence of the cloud service on the up-front development and stand-up, as well as availability of the
services from other vendors. We have concluded that the up-front development, stand-up and customization services are not distinct performance
obligations, and as such, revenue for these activities is recognized over the period during which the cloud-connected services are provided, and is included
within connected services revenue. There can be instances where the customer purchases a software license that allows them to take possession of the
software to enable hosting by the customer or a third-party. For such arrangements, the performance obligation of the license is completed at a point in time
once the customer takes possession of the software.
Professional Services
Revenue from distinct professional services, including training, is recognized over time based upon the progress towards completion of the project,
which is measured based on the labor hours already incurred to date as compared to the total estimated labor hours.
Significant Judgments
Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together
may require significant judgment. Our license contracts often include professional services to customize and/or integrate the licenses into the customer’s
environment. Judgment is required to determine whether the license is considered distinct and accounted for separately, or not distinct and accounted for
together with professional services. Furthermore, hybrid contracts that contain both embedded and connected license and professional services are analyzed
to determine if the products and services are distinct or have stand-alone functionality to determine the revenue treatment.
We allocate the transaction price of the arrangement based on the relative estimated SSP of each distinct performance obligation. Judgment is
required to determine the SSP for each distinct performance obligation. In determining SSP, we maximize observable inputs, when possible. Since our
prices vary from customer to customer based on customer relationship, volume discount and contract type, there are instances where the SSP is not directly
observable. In such instances, we estimate SSP by considering a number of data points, including cost of developing and supplying each performance
obligation; types of offerings; and gross margin objectives and pricing practices, such as contractually stated prices, discounts offered, and applicable price
lists. These factors may vary over time, depending upon the unique facts and circumstances related to each deliverable. We review the SSP for each distinct
performance obligation on a periodic basis, or when the underlying factors are deemed to have changed, and make updates when appropriate.
Contract Acquisition Costs
In conjunction with the adoption of ASC 606, we are required to capitalize certain contract acquisition costs. The capitalized costs primarily relate to
paid commissions. In accordance with the practical expedient in ASC 606-10-10-4, we apply a portfolio approach to estimate contract acquisition costs for
groups of customer contracts. We elect to apply the practical expedient in ASC 340-40-25-4 and will expense contract acquisition costs as incurred where
the expected period of benefit is one year or less. Contract acquisition costs are deferred and amortized on a straight-line basis over the period of benefit,
which we have estimated to be between one and eight years. The period of benefit was determined based on an average customer contract term, expected
contract renewals, changes in technology and our ability to retain customers, including canceled contracts. We assess the amortization term for all major
transactions based on specific facts and circumstances. Contract acquisition costs are classified as current or noncurrent assets based on when the expense
will be recognized. The current and noncurrent portions of contract acquisition costs are included in Prepaid expenses and other current assets and in Other
assets, respectively. As of September 30, 2022 and 2021, we had $8.3 million and $6.9 million of contract acquisition costs. We had amortization expense
of $2.5 million, $1.9 million, and $1.5 million related to these costs during the fiscal years ended September 30, 2022, 2021, and 2020. There was no
impairment related to contract acquisition costs.
Capitalized Contract Costs
We capitalize incremental costs incurred to fulfill our contracts that (i) relate directly to the contract, (ii) are expected to generate resources that will
be used to satisfy our performance obligation under the contract, and (iii) are expected to be recovered through revenue generated under the contract. Our
capitalized costs consist primarily of setup costs, such as costs to standup, customize and develop applications for each customer, which are incurred to
satisfy our stand-ready obligation to provide access to our connected offerings. These contract costs are expensed to cost of revenue as we satisfy our stand-
ready obligation over the contract term which we estimate to be between one and eight years, on average. The contract term was determined based on an
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average customer contract term, expected contract renewals, changes in technology, and our ability to retain customers, including canceled contracts. We
classify these costs as current or noncurrent based on the timing of when we expect to recognize the expense. The current and noncurrent portions of
capitalized contract fulfillment costs are presented as Deferred costs.
We had amortization expense of $10.2 million, $15.4 million and $12.0 million related to these costs during the fiscal years ended September 30,
2022, 2021 and 2020, respectively. There was no impairment related to contract fulfillment costs capitalized.
Trade Accounts Receivable and Contract Balances
We classify our right to consideration in exchange for deliverables as either a receivable or a contract asset. A receivable is a right to consideration
that is unconditional (i.e., only the passage of time is required before payment is due). We present such receivables in Accounts receivable, net in our
Consolidated Balance Sheets at their net estimated realizable value. We maintain an allowance for credit losses to provide for the estimated amount of
receivables that may not be collected. The allowance is based upon an assessment of customer creditworthiness, historical payment experience, the age of
outstanding receivables and other applicable factors.
Our contract assets and liabilities are reported in a net position on a contract-by-contract basis at the end of each reporting period. Contract assets
include unbilled amounts from long-term contracts when revenue recognized exceeds the amount billed to the customer, and right to payment is not solely
subject to the passage of time. The current and noncurrent portions of contract assets are included in Prepaid expenses and other current assets and Other
assets, respectively.
Our contract liabilities, or deferred revenue, consist of advance payments and billings in excess of revenues recognized. We classify deferred
revenue as current or noncurrent based on when we expect to recognize the revenues.
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Business Combinations
We determine and allocate the purchase price of an acquired company to the tangible and intangible assets acquired and liabilities assumed as of the
business combination date. Results of operations and cash flows of acquired companies are included in our operating results from the date of acquisition.
The purchase price allocation process requires us to use significant estimates and assumptions as of the date of the business acquisition, including fair value
estimates such as:
•
•
•
•
estimated fair values of intangible assets;
estimated fair values of legal performance commitments to customers, assumed from the acquiree under existing contractual obligations
(classified as deferred revenue) at the date of acquisition;
estimated income tax assets and liabilities assumed from the acquiree; and
estimated fair value of pre-acquisition contingencies from the acquiree.
While we use our best estimates and assumptions to determine the fair values of assets acquired and liabilities assumed at the date of acquisition, our
estimates and assumptions are inherently uncertain and subject to refinement. As a result, within the measurement period, which is generally one year from
the date of acquisition, we record adjustments to the assets acquired and liabilities assumed against goodwill in the period the amounts are determined.
Adjustments identified subsequent to the measurement period are recorded within Acquisition-related costs, net.
Although we believe the assumptions and estimates we have made in the past have been reasonable and appropriate, they are based in part on
historical experience and information obtained from the management of the acquired companies and are inherently uncertain. Examples of critical estimates
in valuing certain of the intangible assets we have acquired or may acquire in the future include but are not limited to:
•
•
•
•
future expected cash flows from software license sales, support agreements, consulting contracts, connected services, other customer contracts
and acquired developed technologies and patents;
expected costs to develop in-process R&D projects into commercially viable products and the estimated cash flows from the projects when
completed;
the acquired company’s brand and competitive position, as well as assumptions about the period during which the acquired brand will continue
to be used in the combined company’s product portfolio; and
discount rates.
Unanticipated events and circumstances may occur which may affect the accuracy or validity of such assumptions, estimates or actual results.
In connection with the purchase price allocations for our acquisitions, we estimate the fair market value of legal performance commitments to
customers, which are classified as deferred revenue. The estimated fair market value of these obligations is determined and recorded as of the acquisition
date.
We may identify certain pre-acquisition contingencies. If, during the purchase price allocation period, we are able to determine the fair values of a
pre-acquisition contingencies, we will include that amount in the purchase price allocation. If we are unable to determine the fair value of a pre-acquisition
contingency at the end of the measurement period, we will evaluate whether to include an amount in the purchase price allocation based on whether it is
probable a liability had been incurred and whether an amount can be reasonably estimated. Subsequent to the end of the measurement period, any
adjustment to amounts recorded for a pre-acquisition contingency will be included within acquisition-related cost, net in the period in which the adjustment
is determined.
Goodwill Impairment Analysis
Goodwill represents the excess of the purchase price in a business combination over the fair value of net tangible and intangible assets acquired.
Goodwill is not amortized but tested annually for impairment or when indicators of impairment are present. The test for goodwill impairment involves a
qualitative assessment of impairment indicators. If indicators are present, a quantitative test of impairment is performed. Goodwill impairment, if any, is
determined by comparing the reporting unit’s fair value to its carrying value. An impairment loss is recognized in an amount equal to the excess of the
reporting unit’s carrying value over its fair value, up to the amount of goodwill allocated to the reporting unit. Goodwill is tested for impairment annually
on July 1, the first day of the fourth quarter of the fiscal year. There was no goodwill impairment for the fiscal years ending September 30, 2021 and 2020.
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For the purpose of testing goodwill for impairment, all goodwill acquired in a business combination is assigned to one or more reporting units. A
reporting unit represents an operating segment or a component within an operating segment for which discrete financial information is available and is
regularly reviewed by segment management for performance assessment and resource allocation. Components of similar economic characteristics are
aggregated into one reporting unit for the purpose of goodwill impairment assessment. Reporting units are identified annually and re-assessed periodically
for recent acquisitions or any changes in segment reporting structure. Upon consideration of our components, we have concluded that our goodwill is
associated with one reporting unit.
The fair value of a reporting unit is generally determined using a combination of the income approach and the market approach. For the income
approach, fair value is determined based on the present value of estimated future after-tax cash flows, discounted at an appropriate risk-adjusted rate. We
use our internal forecasts to estimate future after-tax cash flows and estimate the long-term growth rates based on our most recent views of the long-term
outlook for each reporting unit. Actual results may differ from those assumed in our forecasts. We derive our discount rates using a capital asset pricing
model and analyzing published rates for industries relevant to our reporting units to estimate the weighted average cost of capital. We adjust the discount
rates for the risks and uncertainty inherent in the respective businesses and in our internally developed forecasts. For the market approach, we use a
valuation technique in which values are derived based on valuation multiples of comparable publicly traded companies. We assess each valuation
methodology based upon the relevance and availability of the data at the time we perform the valuation and weight the methodologies appropriately.
Due to macroeconomic conditions, we concluded that indicators of impairment were present and performed an interim quantitative impairment test
as of June 30, 2022. The fair value of our reporting unit was determined using a combination of the income approach and the market approach. We
weighted the methodologies appropriately to estimate a fair value of approximately $995 million as of June 30, 2022. The estimated fair value exceeded the
$950 million carrying value of our reporting unit by approximately $45 million, or 5% of the carrying value. Based upon the results of the impairment test,
no goodwill impairment was recorded as of June 30, 2022.
On July 1, 2022, we completed the annual impairment testing of our goodwill. We elected to rely on a qualitative assessment and as a result we
determined it is more likely than not that the fair value of our reporting unit is greater than its carrying amount.
At September 30, 2022, we performed a quantitative impairment test. We concluded indicators of impairment were present due to the current
macroeconomic conditions, including continued declines in our stock price. The fair value of our reporting unit was determined using a combination of the
income approach and the market approach. For the income approach, fair value was determined based on the present value of estimated future after-tax
cash flows using our multi-year target plan, discounted at an appropriate risk-adjusted rate. For the market approach, we used a valuation technique in
which values were derived based on valuation multiples of comparable publicly traded companies.
We weighted the methodologies appropriately to estimate a fair value of approximately $713.0 million as of September 30, 2022. The carrying value
of our reporting unit exceeded the estimated fair value. Based upon the results of the impairment test, we recorded a goodwill impairment charge of $213.7
million within the Consolidated Statement of Operations.
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Long-Lived Assets with Definite Lives
Our long-lived assets consist principally of technology, customer relationships, internally developed software, land, building, and equipment.
Customer relationships are amortized over their estimated economic lives based on the pattern of economic benefits expected to be generated from the use
of the asset. Other definite-lived assets are amortized over their estimated economic lives using the straight-line method. The remaining useful lives of
long-lived assets are re-assessed periodically at the asset group level for any events and circumstances that may change the future cash flows expected to be
generated from the long-lived asset or asset group.
Internally developed software consists of capitalized costs incurred during the application development stage, which include costs related to the
design of the software configuration and interfaces, coding, installation and testing. Costs incurred during the preliminary project stage and post-
implementation stage are expensed as incurred. Internally developed software is amortized over the estimated useful life, commencing on the date when the
asset is ready for its intended use. Land, building and equipment are stated at cost and depreciated over their estimated useful lives. Leasehold
improvements are depreciated over the shorter of the related lease term or the estimated useful life. Depreciation is computed using the straight-line
method. Repair and maintenance costs are expensed as incurred. The cost and related accumulated depreciation of sold or retired assets are removed from
the accounts and any gain or loss is included in the results of operations for the period.
Long-lived assets with definite lives are tested for impairment whenever events or changes in circumstances indicate the carrying value of a specific
asset or asset group may not be recoverable. We assess the recoverability of long-lived assets with definite lives at the asset group level. Asset groups are
determined based upon the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. When the
asset group is also a reporting unit, goodwill assigned to the reporting unit is also included in the carrying amount of the asset group. For the purpose of the
recoverability test, we compare the total undiscounted future cash flows from the use and disposition of the assets with its net carrying amount. When the
carrying value of the asset group exceeds the undiscounted future cash flows, the asset group is deemed to be impaired. The amount of the impairment loss
represents the excess of the asset or asset group’s carrying value over its estimated fair value, which is generally determined based upon the present value of
estimated future pre-tax cash flows that a market participant would expect from use and disposition of the long-lived asset or asset group. There were no
long-lived asset impairments in any of the periods presented.
Stock-Based Compensation
We grant equity awards to certain employees which include stock options and restricted stock unit awards in accordance with provisions of the
Cerence 2019 Equity Incentive Plan (“Equity Incentive Plan”).
We account for stock-based compensation through recognition of the fair value of the stock-based compensation as a charge against earnings. The
fair value for time-based restricted stock units and performance-based restricted stock units is based on the closing share price of our common stock on the
date of grant. For performance-based restricted stock units, the compensation cost is recognized based on the number of units expected to vest upon the
achievement of the performance conditions. We recognize stock-based compensation as an expense on a straight-line basis, over the requisite service
period. We account for forfeitures as they occur, rather than applying an estimated forfeiture rate.
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Income Taxes
We account for income taxes using the assets and liabilities method, as prescribed by ASC No. 740, Income Taxes, or ASC 740.
Deferred Taxes
Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement
carry amount of assets and liabilities and their respective tax bases. The method also requires the recognition of future tax benefits such as net operating
loss carryforwards, to the extent that realization of such benefits is more likely than not after consideration of all available evidence. As the income tax
returns are not due and filed until after the completion of our annual financial reporting requirements, the amounts recorded for the current period reflect
estimates for the tax-based activity for the period. In addition, estimates are often required with respect to, among other things, the appropriate state and
foreign income tax rates to use, the potential utilization of operating loss carry-forwards and valuation allowance required, if any, for tax assets that may not
be realizable in the future. Tax laws and tax rates vary substantially in these jurisdictions and are subject to change given the political and economic
climate. We report and pay income tax based on operational results and applicable law. Our tax provision contemplates tax rates currently in effect to
determine both our currency and deferred tax positions.
Any significant fluctuations in rates or changes in tax laws could cause our estimates of taxes we anticipate either paying or recovering in the future
to change. Such changes could lead to either increases or decreases in our effective tax rates.
We have historically estimated the future tax consequences of certain items, including bad debts and accruals that cannot be deducted for income tax
purposes until such expenses are paid or the related assets are disposed. We believe the procedures and estimates used in our accounting for income taxes
are reasonable and in accordance with established tax law. The income tax estimates used have not resulted in material adjustments to income tax expense
in subsequent period when the estimates are adjusted to the actual filed tax return amounts.
Deferred tax assets and liabilities are measured used enacted tax rates expected to apply to taxable income in the fiscal years in which those
temporary differences are expected to be recovered or settled. With respect to earnings expected to be indefinitely reinvested offshore, we do not accrue tax
for the repatriations of such foreign earnings.
Valuation Allowance
We regularly review our deferred tax assets for recoverability considering historically profitability, projected future taxable income, the expected
timing of the reversals of existing temporary differences and tax planning strategies. In assessing the need for a valuation allowance, we consider both
positive and negative evidence related to the likelihood of realization of the deferred tax assets. The weight given to the positive and negative evidence is
commensurate with the extent to which the evidence may be objectively verified. If positive evidence regarding projected future taxable income, exclusive
of reversing taxable temporary differences, existed it would be difficult for it to outweigh objective negative evidence of recent financial reporting losses.
During the third quarter of fiscal year 2022, we established a valuation allowance of $107.6 million against our deferred tax assets in the
Netherlands, which consists of tax amortizable intellectual property and net operating loss carryforwards. We determined we had new negative evidence,
based on updates to transfer pricing arrangements and changes to the earnings guidance for fiscal year 2022. We will continue to maintain a valuation
allowance against our Netherlands deferred tax assets until we believe it is more likely than not that these assets will be realized. If sufficient positive
evidence arises in the future indicating that all or a portion of the deferred tax assets meet the more likely than not standard, the valuation allowance would
be reversed accordingly in the period that such determination is made.
Uncertain Tax Positions
We operate in multiple jurisdictions through wholly owned subsidiaries and our global structure is complex. The estimates of our uncertain tax
positions involve judgments and assessment of the potential tax implications related to legal entity restructuring, intercompany transfer and acquisition or
divestures. We recognize tax benefits from uncertain tax positions only if it is more likely than not that the tax position will be sustained on examination by
the taxing authorities, based on the technical merits of the position. Our tax positions are subject to audit by taxing authorities across multiple global
jurisdictions and the resolution of such audits may span multiple years. Tax laws are complex and often subject to varied interpretations, accordingly, the
ultimate outcome with respect to taxes we may own may differ from the amounts recognized.
Leases
We have entered into a number of facility and equipment leases which qualify as operating leases under GAAP. We also have a limited number of
equipment leases that also qualify as finance leases. We determine if contracts with vendors represent a lease or have a lease component under GAAP at
contract inception. Our leases have remaining terms ranging from less than one year to six years. Some of our leases include options to extend or terminate
the lease prior to the end of the agreed upon lease term. For purposes
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of calculating lease liabilities, lease terms include options to extend or terminate the lease when it is reasonably certain that we will exercise such options.
Operating leases are included in Operating lease right of use assets, Short-term operating lease liabilities, and Long-term operating lease liabilities
on our Consolidated Balance Sheets as of September 30, 2022 and 2021. Finance leases are included in Property and equipment, net, Accrued expenses and
other current liabilities, and Other liabilities on our Consolidated Balance Sheets as of September 30, 2022 and 2021.
Lease costs for minimum lease payments is recognized on a straight-line basis over the lease term. For operating leases, costs are included within
Cost of revenues, Research and development, Sales and marketing, and General and administrative lines on the Consolidated Statements of Operations. For
financing leases, amortization of the finance right of use assets is included within Research and development, Sales and marketing, and General and
administrative lines on the Consolidated Statements of Operations, and interest expense is included within Interest expense.
For operating leases, the related cash payments are included in the operating cash flows on the Consolidated Statements of Cash Flows. For
financing leases, the related cash payments for the principal portion of the lease liability are included in the financing cash flows on the Consolidated
Statement of Cash Flows and the related cash payments for the interest portion of the lease liability are included in the operating cash flows on the
Consolidated Statement of Cash Flows.
Convertible Debt
We bifurcate the debt and equity (the contingently convertible feature) components of our convertible debt instruments in a manner that reflects our
nonconvertible debt borrowing rate at the time of issuance. The equity components of our convertible debt instruments are recorded within stockholders’
equity with an allocated issuance premium or discount. The debt issuance premium or discount is amortized to Interest expense in our Consolidated
Statement of Operations using the effective interest method over the expected term of the convertible debt.
We assess the short-term and long-term classification of our convertible debt on each balance sheet date. Whenever the holders have a contractual
right to convert, the carrying amount of the convertible debt is reclassified to current liabilities, with the corresponding equity components classified from
additional paid-in-capital to mezzanine equity, as needed.
62
Loss Contingencies
We may be subject to legal proceedings, lawsuits and other claims relating to labor, service, intellectual property, and other matters that arise from
time to time in the ordinary course of business. On a quarterly basis, we review the status of each significant matter and assess our potential financial
exposure. If the potential loss from any claim or legal proceeding is considered probable and the amount can be reasonably estimated, we accrue a liability
for the estimated loss. Significant judgments are required for the determination of probability and the range of the outcomes. Due to the inherent
uncertainties, estimates are based only on the best information available at the time. Actual outcomes may differ from our estimates. As additional
information becomes available, we reassess the potential liability related to our pending claims and litigation and may revise our estimates. Such revisions
may have a material impact on our results of operations and financial position.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
We are exposed to market risk from changes in foreign currency exchange rates and interest rates which could affect operating results, financial
position and cash flows. We manage our exposure to these market risks through our regular operating and financing activities, and through the use of
derivative financial instruments.
Exchange Rate Sensitivity
We are exposed to changes in foreign currency exchange rates. Any foreign currency transaction, defined as a transaction denominated in a currency
other than the local functional currency, will be reported in the functional currency at the applicable exchange rate in effect at the time of the transaction. A
change in the value of the functional currency compared to the foreign currency of the transaction will have either a positive or negative impact on our
financial position and results of operations.
Assets and liabilities of our foreign entities are translated into U.S. dollars at exchange rates in effect at the balance sheet date and income and
expense items are translated at average rates for the applicable period. Therefore, the change in the value of the U.S. dollar compared to foreign currencies
will have either a positive or negative effect on our financial position and results of operations. Historically, our primary exposure has been related to
transactions denominated in the Canadian dollar, Chinese yuan, Euro, and Japanese yen.
We use foreign currency forward contracts to hedge the foreign currency exchange risk associated with forecasted foreign denominated payments
related to our ongoing business. The aggregate notional amount of our outstanding foreign currency forward contracts was $63.3 million at September 30,
2022. Foreign currency forward contracts are sensitive to changes in foreign currency exchange rates. A 10% unfavorable exchange rate movement in our
portfolio of foreign currency contracts would have resulted in unrealized losses of $5.1 million at September 30, 2022. Such losses would be offset by
corresponding gains in the remeasurement of the underlying transactions being hedged. We believe these foreign currency forward exchange contracts and
the offsetting underlying commitments, when taken together, do not create material market risk.
Interest Rate Sensitivity
We are exposed to interest rate risk as a result of our cash and cash equivalents and indebtedness related to the Senior Credit Facilities.
At September 30, 2022, we held approximately $94.8 million of cash and cash equivalents consisting of cash and highly liquid investments,
including money-market funds and time deposits. Assuming a 1% increase in interest rates, our interest income on our money-market funds and time
deposits classified as cash and cash equivalents would increase by $0.6 million per annum, based on September 30, 2022 reported balances.
The borrowings under our Senior Credit Facilities are subject to interest rates based on LIBOR. As of September 30, 2022, assuming a 1% increase
in interest rates and our Revolving Facility is fully drawn, our interest expense on our Senior Credit Facilities would increase by approximately $1.6 million
per annum.
63
Item 8. Financial Statements and Supplementary Data.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Reports of Independent Registered Public Accounting Firm (PCAOB ID 243)
Consolidated Statements of Operations for the years ended September 30, 2022, 2021, and 2020
Consolidated Statements of Comprehensive (Loss) Income for the years ended September 30, 2022, 2021, and 2020
Consolidated Balance Sheets as of September 30, 2022 and 2021
Consolidated Statements of Equity for the years ended September 30, 2022, 2021, and 2020
Consolidated Statements of Cash Flows for the years ended September 30, 2022, 2021, and 2020
Notes to the Consolidated Financial Statements
65
68
69
70
71
72
73
64
Report of Independent Registered Public Accounting Firm
Shareholders and Board of Directors
Cerence Inc.
Burlington, Massachusetts
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Cerence Inc. (the “Company”) as of September 30, 2022 and 2021, the related
consolidated statements of operations and comprehensive (loss) income, consolidated statements of equity, and consolidated cash flows for each of the
three years in the period ended September 30, 2022, and the related notes (collectively referred to as the “consolidated financial statements”). In our
opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at September 30, 2022 and 2021,
and the results of its operations and its cash flows for each of the three years in the period ended September 30, 2022, in conformity with accounting
principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the
Company's internal control over financial reporting as of September 30, 2022, based on criteria established in Internal Control – Integrated Framework
(2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) and our report dated November 29, 2022 expressed
an unqualified opinion thereon.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the
Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be
independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and
Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error
or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and
disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by
management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis
for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were
communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated
financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not
alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below,
providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
Identification of Performance Obligations
As described in Note 3 to the Company’s consolidated financial statements, certain of the Company’s revenue contracts contain multiple products
and services relating to the sale of connected or embedded licenses and professional services. For these revenue contracts, the Company accounts for the
individual products and services separately if they are distinct. The transaction price is allocated to the performance obligations based on their relative
standalone selling prices. The Company determines the standalone selling prices by maximizing observable inputs when available, including pricing of
standalone sales, cost of developing and supplying each performance obligation, types of offerings, and gross margin objectives and pricing practices, such
as contractually stated prices, discounts offered, and applicable price lists.
We determined that the identification of performance obligations and the recognition of revenue related to contracts that contain multiple
performance obligations represents a critical audit matter. The determination of whether multiple services within a contract are distinct performance
obligations that should be accounted for separately requires management to exercise significant judgment and includes a high degree of subjectivity.
Auditing these elements involved especially challenging auditor judgment due to the nature and extent of effort required to address these matters.
65
The primary procedures we performed to address this critical audit matter included:
•
•
•
Evaluating the design and testing operating effectiveness of certain controls relating to management’s identification and assessment of
distinct performance obligations in contracts with customers.
Evaluating management’s technical accounting policies and practices including the reasonableness of management’s judgments and
assumptions in the determination of whether the products and services represent distinct performance obligations.
Testing the reasonableness of the identification of distinct performance obligations through inspection of a sample of customer contracts and
other source documents.
Goodwill Impairment Assessment
As described in Notes 2 and 7 to the consolidated financial statements, the Company’s goodwill is associated with one reporting unit. As of
September 30, 2022, the Company concluded that indicators of impairment were present due to macroeconomic conditions, including continued declines in
stock price. A quantitative assessment was performed using a combination of the discounted cashflow method under the income approach and the market
approach and the Company determined that the goodwill was impaired and recorded a non-cash impairment charge of $213.7 million within the
consolidated financial statements. The determination of the fair value of the reporting unit requires management to make significant estimates and
assumptions related to future cash flows and the discount rate used in the valuation model.
We identified the valuation of goodwill as a critical audit matter. The principal considerations for our determination are the inherent uncertainties
related to the Company’s forecasts and how various factors could affect the Company’s assumptions, in particular the revenue forecast and the discount rate
specific to the impairment test. Auditing these significant assumptions and judgments involved especially challenging auditor judgment and an increased
level of effort, including the extent of specialized skills and knowledge required.
The primary procedures we performed to address this critical audit matter included:
•
•
•
•
Evaluating the design and testing operating effectiveness of certain controls relating to the Company’s forecast and goodwill impairment
assessment.
Evaluating the reasonableness of the assumptions used in the income approach, including management’s forecast: (i) comparing the forecasts
for revenue to historical results, (ii) comparing automotive industry information to the Company’s revenue forecast to determine whether
contradictory evidence exists, (iii) reviewing the future automotive production reports and projected market share, and (iv) evaluating pricing
assumptions for future periods including review of executed contracts in the Company’s backlog.
Testing the completeness and accuracy of the data used by management to develop its forecast.
Utilizing personnel with specialized knowledge and skills in valuation to assist in: (i) assessing the appropriateness of valuation methods, (ii)
testing the mathematical accuracy of the Company’s calculations, and (iii) evaluating the reasonableness of certain assumptions, including the
discount rate used in the income approach.
/s/ BDO USA, LLP
We have served as the Company’s auditor since 2017.
Boston, Massachusetts
November 29, 2022
66
Report of Independent Registered Public Accounting Firm
Shareholders and Board of Directors
Cerence Inc.
Burlington, Massachusetts
Opinion on Internal Control over Financial Reporting
We have audited Cerence Inc.’s (the “Company’s”) internal control over financial reporting as of September 30, 2022, based on criteria established
in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the “COSO
criteria”). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of September 30, 2022,
based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the
consolidated balance sheets of Cerence Inc. (the “Company”) as of September 30, 2022 and 2021, the related consolidated statements of operations and
comprehensive income (loss), consolidated statements of equity, and consolidated cash flows for each of the three years in the period ended September 30,
2022, and the related notes and our report dated November 29, 2022 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the
effectiveness of internal control over financial reporting, included in the accompanying Item 9A, Management’s Report on Internal Control over Financial
Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public
accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with U.S. federal securities laws
and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit of internal control over financial reporting in accordance with the standards of the PCAOB. Those standards require that we
plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material
respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and
testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other
procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s
internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded
as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures
of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the
financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
/s/ BDO USA, LLP
Boston, Massachusetts
November 29, 2022
67
CERENCE INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
2022
Year Ended September 30,
2021
2020
Revenues:
License
Connected services
Professional services
Total revenues
Cost of revenues:
License
Connected services
Professional services
Amortization of intangible assets
Total cost of revenues
Gross profit
Operating expenses:
Research and development
Sales and marketing
General and administrative
Amortization of intangible assets
Restructuring and other costs, net
Goodwill impairment
Total operating expenses
(Loss) income from operations
Interest income
Interest expense
Other (expense) income, net
(Loss) income before income taxes
Provision for (benefit from) income taxes
Net (loss) income
Net (loss) income per share:
Basic
Diluted
Weighted-average common share outstanding:
Basic
Diluted
Refer to accompanying Notes to the Consolidated Financial Statements.
68
$
158,610 $
85,571
83,710
327,891
202,183 $
109,534
75,465
387,182
2,698
22,722
68,764
2,984
97,168
230,723
107,116
31,098
42,653
11,516
8,965
213,720
415,068
(184,345 )
1,007
(14,394 )
(1,019 )
(198,751 )
112,075
(310,826 ) $
(7.93 ) $
(7.93 ) $
39,187
39,187
3,544
25,727
64,287
7,516
101,074
286,108
112,070
38,683
56,979
12,690
5,092
—
225,514
60,594
109
(13,997 )
1,563
48,269
2,376
45,893 $
1.22 $
1.17 $
37,752
39,289
$
$
$
164,268
97,469
69,230
330,967
2,783
31,768
64,963
8,337
107,851
223,116
88,899
33,398
49,386
12,544
16,458
—
200,685
22,431
585
(22,737 )
(23,319 )
(23,040 )
(4,724 )
(18,316 )
(0.50 )
(0.50 )
36,428
36,428
CERENCE INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME
(In thousands)
Net (loss) income
Other comprehensive (loss) income:
Foreign currency translation adjustments
Pension adjustments, net
Unrealized loss on available-for-sale securities
Total other comprehensive (loss) income
Comprehensive (loss) income
Refer to accompanying Notes to the Consolidated Financial Statements.
69
2022
Year Ended September 30,
2021
2020
$
(310,826 )
$
45,893 $
(18,316 )
(37,179 )
2,233
(425 )
(35,371 )
(346,197 )
$
(1,980 )
(87 )
(10 )
(2,077 )
43,816 $
15,805
1,178
(1 )
16,982
(1,334 )
$
CERENCE INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except per share amounts)
ASSETS
September 30, 2022
September 30, 2021
Current assets:
Cash and cash equivalents
Marketable securities
Accounts receivable, net of allowances of $157 and $395 at September 30, 2022 and
September 30, 2021, respectively
Deferred costs
Prepaid expenses and other current assets
$
Total current assets
Long-term marketable securities
Property and equipment, net
Deferred costs
Operating lease right of use assets
Goodwill
Intangible assets, net
Deferred tax assets
Other assets
Total assets
LIABILITIES AND STOCKHOLDERS' EQUITY
$
Current liabilities:
Accounts payable
Deferred revenue
Short-term operating lease liabilities
Short-term debt
Accrued expenses and other current liabilities
Total current liabilities
Long-term debt, net of discounts and issuance costs
Deferred revenue, net of current portion
Long-term operating lease liabilities
Other liabilities
Total liabilities
Commitments and contingencies (Note 13)
Stockholders' Equity:
Common stock, $0.01 par value, 560,000 shares authorized as of September 30, 2022;
39,430 and 38,025 shares issued and outstanding as of September 30, 2022 and
September 30, 2021, respectively
Accumulated other comprehensive (loss) income
Additional paid-in capital
(Accumulated deficit) Retained earnings
Total stockholders' equity
Total liabilities and stockholders' equity
Refer to accompanying Notes to the Consolidated Financial Statements.
70
$
$
94,847 $
20,317
45,073
7,098
60,184
227,519
11,584
37,707
22,451
14,702
890,802
9,700
51,989
52,039
1,318,493 $
10,372 $
72,662
5,071
10,938
47,990
147,033
259,436
165,972
11,375
21,727
605,543
394
(33,737 )
1,029,542
(283,249 )
712,950
1,318,493 $
128,428
30,435
45,560
6,095
76,530
287,048
7,339
31,505
31,702
14,901
1,128,511
25,348
159,293
20,081
1,705,728
11,636
78,394
4,562
6,250
64,467
165,309
265,093
198,343
12,216
32,822
673,783
381
1,634
1,002,353
27,577
1,031,945
1,705,728
CERENCE INC.
CONSOLIDATED STATEMENTS OF EQUITY
(In thousands)
Common Stock
Shares Amount
Additional
Paid-In
Capital
(Accumulated Deficit)
Retained Earnings
Net
Parent
Investment
Accumulated
Other
Comprehensive (Loss)
Income
Total
-
(18,316 )
-
-
1,097,127
-
-
(152,978 )
(28,999 )
-
16,982
1,068,12
8
(18,316 )
16,982
- (152,978 )
Balance at October 1, 2019
Net loss
Other comprehensive income
Distribution to Parent
Net (decrease) increase in net
parent investment
Reclassification of net parent
investment in Cerence
Issuance of common stock at
separation
Issuance of common stock
Stock withheld to cover tax
withholdings requirements
upon stock vesting
Convertible Senior Notes
conversion feature (net of
taxes of $4,678 and issuance
costs of $627)
Stock-based compensation
Balance at September 30, 2020
Net income
Other comprehensive loss
Issuance of common stock
Stock withheld to cover tax
withholdings requirements
upon stock vesting
Stock-based compensation
Balance at September 30, 2021
Net loss
Other comprehensive loss
Issuance of common stock
Stock withheld to cover tax
withholdings requirements
upon stock vesting
Stock-based compensation
Balance at September 30, 2022
-
-
-
-
-
-
36,39
1
706
-
-
-
-
-
-
-
-
-
-
- 938,051
364
7
(364 )
1,311
(255 )
(2 )
(9,367 )
-
-
36,84
2
-
-
1,718
(535 )
-
38,02
5
-
-
1,584
-
-
14,371
30,305
369 974,307
-
-
11,505
-
-
17
(5 )
-
(46,004 )
62,545
1,002,35
3
-
-
36,048
381
-
-
14
(179 )
-
(1 )
-
(49,002 )
40,143
39,43
0
1,029,54
394
2
(283,249 )
Refer to accompanying Notes to the Consolidated Financial Statements.
71
-
-
-
-
-
-
-
(18,316 )
45,893
-
-
-
-
27,577
(310,826 )
-
-
-
-
(6,098 )
15,728
9,630
(938,051 )
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
1,318
-
(9,369 )
-
-
14,371
30,305
3,711 960,071
45,893
(2,077 )
11,522
-
(2,077 )
-
-
-
(46,009 )
62,545
1,031,94
5
- (310,826 )
(35,371 )
36,062
1,634
(35,371 )
-
-
-
(49,003 )
40,143
(33,737 ) 712,950
CERENCE INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Cash flows from operating activities:
Net (loss) income
Adjustments to reconcile net (loss) income to net cash (used in) provided by operations:
2022
Year Ended September 30,
2021
2020
$
(310,826 ) $
45,893 $
(18,316 )
Depreciation and amortization
(Benefit from) provision for credit loss reserve
Stock-based compensation
Non-cash interest expense
Loss on debt extinguishment
Deferred tax provision (benefit)
Goodwill impairment
Other
Changes in operating assets and liabilities:
Accounts receivable
Prepaid expenses and other assets
Deferred costs
Accounts payable
Accrued expenses and other liabilities
Deferred revenue
Net cash (used in) provided by operating activities
Cash flows from investing activities:
Capital expenditures
Purchases of marketable securities
Sale and maturities of marketable securities
Purchase of debt securities
Payments for equity securities
Other investing activities
Net cash used in investing activities
Cash flows from financing activities:
Net transactions with Parent
Distributions to Parent
Proceeds from long-term debt, net of discount
Payments for long-term debt issuance costs
Principal payments of long-term debt
Common stock repurchases for tax withholdings for net settlement of equity awards
Principal payments of lease liabilities arising from a finance leases
Proceeds from the issuance of common stock
Net cash (used in) provided by financing activities
Effects of exchange rate changes on cash and cash equivalents
Net change in cash and cash equivalents
Cash and cash equivalents at beginning of year
Cash and cash equivalents at end of year
Supplemental information:
Cash paid for income taxes
Cash paid for interest
Refer to accompanying Notes to the Consolidated Financial Statements.
$
$
$
72
23,939
(413 )
28,076
5,281
—
97,287
213,720
6,115
(6,590 )
(33,756 )
4,654
157
(1,479 )
(28,303 )
(2,138 )
(17,446 )
(31,757 )
37,203
—
(584 )
2,019
(10,565 )
—
—
—
—
(6,250 )
(49,003 )
(415 )
36,062
(19,606 )
(1,272 )
(33,581 )
128,428
94,847 $
29,661
(415 )
60,555
5,013
—
(4,419 )
—
(606 )
5,751
(30,661 )
6,984
3,411
(1,125 )
(45,653 )
74,389
(12,047 )
(42,471 )
16,350
(2,000 )
(2,563 )
1,100
(41,631 )
—
—
—
(520 )
(6,252 )
(45,769 )
(486 )
11,522
(41,505 )
1,108
(7,639 )
136,067
128,428 $
30,041
704
47,285
5,286
19,279
(10,568 )
—
—
15,154
(30,311 )
(1,381 )
(2,430 )
26,040
(35,994 )
44,789
(19,012 )
(11,663 )
—
—
—
—
(30,675 )
12,964
(152,978 )
547,719
(6,402 )
(271,563 )
(9,369 )
(136 )
1,318
121,553
400
136,067
—
136,067
12,273 $
9,088 $
6,177 $
9,550 $
2,181
14,733
CERENCE INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
1. Organization
History
On October 1, 2019, (the “Distribution Date”), Nuance Communications, Inc. (“Nuance” or “the Parent”), a leading provider of speech and language
solutions for businesses and consumers around the world, completed the complete legal and structural separation and distribution to its stockholders of all
of the outstanding shares of our common stock, and its consolidated subsidiaries, in a tax free spin-off (the “Spin-Off”). The distribution was made in the
amount of one share of our common stock for every eight shares of Nuance common stock (the “Distribution”) owned by Nuance’s stockholders as of 5:00
p.m. Eastern Time on September 17, 2019, the record date of the Distribution.
In connection with the Distribution, on September 30, 2019, we filed an Amended and Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware, which became effective on October 1, 2019. Our Amended and Restated By-laws also became effective on October 1, 2019.
On October 2, 2019, our common stock began regular-way trading on the Nasdaq Global Select Market under the ticker symbol CRNC.
Business
Cerence Inc. (referred to in this Annual Report on Form 10-K as “we,” “our,” “us,” “ourselves,” the “Company” or “Cerence”) is a global, premier
provider of AI-powered assistants and innovations for connected and autonomous vehicles. Our customers include all major automobile original equipment
manufacturers (“OEMs”), or their tier 1 suppliers worldwide. We deliver our solutions on a white-label basis, enabling our customers to deliver customized
virtual assistants with unique, branded personalities and ultimately strengthening the bond between automobile brands and end users. We generate revenue
primarily by selling software licenses and cloud-connected services. In addition, we generate professional services revenue from our work with OEMs and
suppliers during the design, development and deployment phases of the vehicle model lifecycle and through maintenance and enhancement projects.
COVID-19 Update
In March 2020, the World Health Organization characterized COVID-19 as a pandemic. In an effort to contain COVID-19 or slow its spread,
governments around the world have enacted various measures, some of which have been subsequently rescinded, modified or reinstated, including orders to
close all businesses not deemed “essential,” isolate residents to their homes or places of residence, and practice social distancing.
We have taken numerous steps in our approach to addressing the COVID-19 pandemic, and we will continue to closely monitor ongoing
developments in connection with the COVID-19 pandemic and its impact on our business.
The full extent to which the ongoing COVID-19 pandemic adversely affects our financial performance will depend on future developments, many of
which are outside of our control, are highly uncertain and cannot be predicted, including, but not limited to, the duration and scope of the pandemic, its
severity, the emergence of new variants of the virus, such as Omicron; the development and availability of effective treatments and vaccines, the speed at
which vaccines are administered, and how quickly and to what extent normal economic and operating conditions can resume.
The COVID-19 pandemic has resulted in, and may continue to result in, additional governmental restrictions and regulations, which has adversely
affected, and may continue to adversely affect our business and financial results. For example, pandemic related lockdowns have been experienced in China
during fiscal year 2022, which resulted in loss of automotive production. We have seen, and anticipate that we will continue to see, supply chain challenges
in the automotive industry related to semiconductor devices that are used in automobiles. The current macroeconomic conditions have also increased
competition for qualified employees in our industry, particularly for members of our professional service teams, and we, along with automotive OEMs, face
significant competition in hiring and retaining them. In addition, a recession, depression or other sustained adverse market impact resulting from COVID-
19 could materially and adversely affect our business, our access to needed capital and liquidity, and the value of our common stock. Even after the
COVID-19 pandemic has lessened or subsided, we may continue to experience adverse impacts on our business and financial performance as a result of its
global economic impact.
2. Summary of Significant Accounting Policies
(a) Basis of Presentation
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The accompanying consolidated financial statements of the Company have been prepared in accordance with accounting principles generally
accepted in the United States (“GAAP”) and the rules and regulations of the Securities and Exchange Commission (“SEC”). The consolidated financial
statements reflect all adjustments considered necessary for a fair presentation of the consolidated results of operations and financial position for the fiscal
years presented. All such adjustments are of a normal recurring nature.
(b) Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the Company, as well as those of our wholly owned subsidiaries. All
significant intercompany transactions and balances are eliminated in consolidation.
(c) Use of Estimates
The Consolidated Financial Statements are prepared in accordance with GAAP, which requires management to make estimates and assumptions.
These estimates, judgments and assumptions can affect the reported amounts in the financial statements and the footnotes thereto. Actual results could
differ materially from these estimates. On an ongoing basis, we evaluate our estimates, assumptions and judgments. Significant estimates inherent to the
preparation of financial statements include: revenue recognition; the allowances for credit losses and doubtful accounts; accounting for deferred costs;
accounting for internally developed software; the valuation of goodwill and intangible assets; accounting for business combinations; accounting for stock-
based compensation; accounting for income taxes; accounting for leases; accounting for convertible debt; and loss contingencies. We base our estimates on
historical experience, market participant fair value considerations, projected future cash flows, and various other factors that are believed to be reasonable
under the circumstances. Actual amounts could differ significantly from these estimates.
(d) Revenue Recognition
We primarily derive revenue from the following sources: (1) royalty-based software license arrangements, (2) connected services, and (3)
professional services. Revenue is reported net of applicable sales and use tax, value-added tax and other transaction taxes imposed on the related transaction
including mandatory government charges that are passed through to our customers. We account for a contract when both parties have approved and
committed to the contract, the rights of the parties are identified, payment terms are identified, the contract has commercial substance and collectability of
consideration is probable.
Our arrangements with customers may contain multiple products and services. We account for individual products and services separately if they are
distinct—that is, if a product or service is separately identifiable from other items in the contract and if a customer can benefit from it on its own or with
other resources that are readily available to the customer.
We currently recognize revenue after applying the following five steps:
•
•
•
•
•
identification of the contract, or contracts, with a customer;
identification of the performance obligations in the contract, including whether they are distinct within the context of the contract;
determination of the transaction price, including the constraint on variable consideration;
allocation of the transaction price to the performance obligations in the contract; and
recognition of revenue when, or as, performance obligations are satisfied.
We allocate the transaction price of the arrangement based on the relative estimated SSP of each distinct performance obligation. In determining
SSP, we maximize observable inputs, when possible. Since prices vary from customer to customer based on customer relationship, volume discount and
contract type, in instances where the SSP is not directly observable, we estimate SSP by considering a number of data points, including cost of developing
and supplying each performance obligation; types of offerings; and gross margin objectives and pricing practices, such as contractually stated prices,
discounts offered, and applicable price lists.
We only include estimated amounts in the transaction price to the extent it is probable that a significant reversal of cumulative revenue recognized
will not occur when the uncertainty associated with the variable consideration is resolved. We reduce transaction prices for estimated returns and other
allowances that represent variable consideration under ASC 606, which we estimate based on historical return experience and other relevant factors, and
record a corresponding refund liability as a component of accrued expenses and other current liabilities. Other forms of contingent revenue or variable
consideration are infrequent.
Revenue is recognized when control of these product or services are transferred to our customers, in an amount that reflects the consideration we
expect to be entitled to in exchange for those products or services.
We assess the timing of the transfer of products or services to the customer as compared to the timing of payments to determine whether a significant
financing component exists. In accordance with the practical expedient in ASC 606-10-32-18, we do not assess
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the existence of a significant financing component when the difference between payment and transfer of deliverables is a year or less. If the difference in
timing arises for reasons other than the provision of finance to either the customer or us, no financing component is deemed to exist. The primary purpose
of our invoicing terms is to provide customers with simplified and predictable ways of purchasing our services, not to receive or provide financing from or
to customers. We do not consider set-up fees nor other upfront fees paid by our customers to represent a financing component.
Reimbursements for out-of-pocket costs generally include, but are not limited to, costs related to transportation, lodging and meals. Revenue from
reimbursed out-of-pocket costs is accounted for as variable consideration.
(e) Business Combinations
We determine and allocate the purchase price of an acquired company to the tangible and intangible assets acquired and liabilities assumed as of the
date of acquisition. Results of operations and cash flows of acquired companies are included in our operating results from the date of acquisition. The
purchase price allocation process requires us to use significant estimates and assumptions, which include:
•
•
•
•
•
estimated fair values of intangible assets;
estimated fair values of legal performance commitments to customers, assumed from the acquiree under existing contractual obligations
(classified as deferred revenue);
estimated income tax assets and liabilities assumed from the acquiree;
estimated fair value of pre-acquisition contingencies assumed from the acquiree; and
estimated fair value of any contingent consideration which is established at the acquisition date and included in the total purchase price. The
contingent consideration is then adjusted to fair value, with any measurement-period adjustment recorded against goodwill. Adjustments
identified subsequent to the measurement period are recorded within acquisition-related costs.
While we use our best estimates and assumptions as part of the purchase price allocation process to accurately value assets acquired and liabilities
assumed at the business combination date, our estimates and assumptions are inherently uncertain and subject to refinement. As a result, during the
measurement period, which is generally one year from the acquisition date, any adjustment to the assets acquired and liabilities assumed is recorded against
goodwill in the period in which the amount is determined. Any adjustment identified subsequent to the measurement period is included in operating results
in the period in which the amount is determined.
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(f) Cash and Cash Equivalents
Cash and cash equivalents include cash on hand and highly liquid investments that are readily convertible to known amounts of cash and have
original maturities of three months or less.
(g) Marketable Securities
Marketable securities consist of commercial paper, government securities and corporate bonds. We classify our marketable securities as available-
for-sale at the time of purchase and reevaluate such classification as of each balance sheet date. We may sell these securities at any time for use in current
operations even if they have not yet reached maturity. We classify our marketable securities as either short-term or long-term based on the nature of each
security. We record marketable securities at fair value, with the unrealized gains or losses included within Accumulated other comprehensive (loss) income
on the Consolidated Balance Sheets until realized. Interest income earned from our marketable securities is reported within Interest income on the
Consolidated Statements of Operations. We evaluate our marketable securities to assess whether those with unrealized loss positions are other than
temporarily impaired. We consider impairment to be other than temporary if they are related to deterioration in credit risk or if it is likely we will sell the
securities before the recovery of their cost basis. Realized gains and losses and declines in value judged to be other than temporary are determined based on
the specific identification method and are reported in Other income (expense), net on the Consolidated Statements of Operations.
(h) Goodwill
Goodwill represents the excess of the purchase price in a business combination over the fair value of net assets acquired. Goodwill is not amortized
but tested annually for impairment or when indicators of impairment are present. The test for goodwill impairment involves a qualitative assessment of
impairment indicators. If indicators are present, a quantitative test of impairment is performed. Goodwill impairment, if any, is determined by comparing
the reporting unit’s fair value to its carrying value. An impairment loss is recognized in an amount equal to the excess of the reporting unit’s carrying value
over its fair value, up to the amount of goodwill allocated to the reporting unit. Goodwill is tested for impairment annually on July 1, the first day of the
fourth quarter of the fiscal year. There is no goodwill impairment for the years ended September 30, 2021, and 2020.
We believe our Chief Executive Officer (“CEO”) is our chief operating decision maker (“CODM”). Our CEO approves all major decisions,
including reorganizations and new business initiatives. Our CODM reviews routine consolidated operating information and makes decisions on the
allocation of resources at this level, as such, we have concluded that we have one operating segment.
For the purpose of testing goodwill for impairment, all goodwill acquired in a business combination is assigned to one or more reporting units. A
reporting unit represents an operating segment or a component within an operating segment for which discrete financial information is available and is
regularly reviewed by segment management for performance assessment and resource allocation. Components of similar economic characteristics are
aggregated into one reporting unit for the purpose of goodwill impairment assessment. Reporting units are identified annually and re-assessed periodically
for recent acquisitions or any changes in segment reporting structure. Upon consideration of our components, we have concluded that our goodwill is
associated with one reporting unit.
The fair value of a reporting unit is generally determined using a combination of the income approach and the market approach. For the income
approach, fair value is determined based on the present value of estimated future after-tax cash flows, discounted at an appropriate risk-adjusted rate. We
use our internal forecasts to estimate future after-tax cash flows and estimate the long-term growth rates based on our most recent views of the long-term
outlook for each reporting unit. Actual results may differ from those assumed in our forecasts. We derive our discount rates using a capital asset pricing
model and analyzing published rates for industries relevant to our reporting units to estimate the weighted average cost of capital. We adjust the discount
rates for the risks and uncertainty inherent in the respective businesses and in our internally developed forecasts. For the market approach, we use a
valuation technique in which values are derived based on valuation multiples of comparable publicly traded companies. We assess each valuation
methodology based upon the relevance and availability of the data at the time we perform the valuation and weight the methodologies appropriately.
Due to macroeconomic conditions, we concluded that indicators of impairment were present and performed an interim quantitative impairment test
as of June 30, 2022. The fair value of our reporting unit was determined using a combination of the income approach and the market approach. We
weighted the methodologies appropriately to estimate a fair value of approximately $995 million as of June 30, 2022. The estimated fair value exceeded the
$950 million carrying value of our reporting unit by approximately $45 million, or 5% of the carrying value. Based upon the results of the impairment test,
no goodwill impairment was recorded as of June 30, 2022.
On July 1, 2022, we completed the annual impairment testing of our goodwill. We elected to rely on a qualitative assessment and as a result we
determined it is more likely than not that the fair value of our reporting unit is greater than its carrying amount.
76
At September 30, 2022, we performed a quantitative impairment test. We concluded indicators of impairment were present due to the current
macroeconomic conditions, including continued declines in our stock price. The fair value of our reporting unit was determined using a combination of the
income approach and the market approach. For the income approach, fair value was determined based on the present value of estimated future after-tax
cash flows using our multi-year target plan, discounted at an appropriate risk-adjusted rate. For the market approach, we used a valuation technique in
which values were derived based on valuation multiples of comparable publicly traded companies.
We weighted the methodologies appropriately to estimate a fair value of approximately $713.0 million as of September 30, 2022. The carrying value
of our reporting unit exceeded the estimated fair value. Based upon the results of the impairment test, we recorded a goodwill impairment charge of $213.7
million within the Consolidated Statement of Operations.
(i) Long-Lived Assets with Definite Lives
Our long-lived assets consist principally of technology and patents, customer relationships, internally developed software, property and equipment.
Customer relationships are amortized over their estimated economic lives based on the pattern of economic benefits expected to be generated from the use
of the asset. Other definite-lived assets are amortized over their estimated economic lives using the straight-line method. The remaining useful lives of
long-lived assets are re-assessed periodically for any events and circumstances that may change the future cash flows expected to be generated from the
long-lived asset or asset group.
Internally developed software consists of capitalized costs incurred during the application development stage, which include costs to design the
software configuration and interfaces, coding, installation and testing. Costs incurred during the preliminary project stage, along with post-implementation
stages of internally developed software, are expensed as incurred. Internally developed software costs that have been capitalized are typically amortized
over the estimated useful life, commencing with the date when an asset is ready for its intended use. Equipment is stated at cost and depreciated over the
estimated useful life. Leasehold improvements are depreciated over the shorter of the related remaining lease term or the estimated useful life. Depreciation
is computed using the straight-line method. Repair and maintenance costs are expensed as incurred. The cost and related accumulated depreciation of sold
or retired assets are removed from the accounts and any gain or loss is included in the results of operations for the period.
Long-lived assets with definite lives are tested for impairment whenever events or changes in circumstances indicate the carrying value of a specific
asset or asset group may not be recoverable. We assess the recoverability of long-lived assets with definite lives at the asset group level. Asset groups are
determined based upon the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. When the
asset group is also a reporting unit, goodwill assigned to the reporting unit is also included in the carrying amount of the asset group. For the purpose of the
recoverability test, we compare the total undiscounted future cash flows from the use and disposition of the assets with its net carrying amount. When the
carrying value of the asset group exceeds the undiscounted future cash flows, the asset group is deemed to be impaired. The amount of the impairment loss
represents the excess of the asset or asset group’s carrying value over its estimated fair value, which is generally determined based upon the present value of
estimated future pre-tax cash flows that a market participant would expect from use and disposition of the long-lived asset or asset group. There was no
impairment of long-lived assets during the years ended September 30, 2022, 2021, and 2020.
(j) Allowance for Credit Losses
Fiscal year 2022 and 2021
We are exposed to credit losses primarily through our sales of software licenses and services to customers. We determine credit ratings for each
customer in our portfolio based upon public information and information obtained directly from our customers. A credit limit for each customer is
established and in certain cases we may require collateral or prepayment to mitigate credit risk. Our expected loss methodology is developed using
historical collection experience, current customer credit information, current and future economic and market conditions and a review of the current status
of the customer's account balances. We monitor our ongoing credit
77
exposure through reviews of customer balances against contract terms and due dates, current economic conditions, and dispute resolution. Estimated credit
losses are written off in the period in which the financial asset is no longer collectible.
The change in the allowance for credit losses for the fiscal year ended September 30, 2022 and 2021 is as follows (dollars in thousands):
Balance as of September 30, 2020
Credit loss provision
Write-offs, net of recoveries
Foreign exchange impact on ending balance
Balance as of September 30, 2021
Credit loss provision
Write-offs, net of recoveries
Foreign exchange impact on ending balance
Balance as of September 30, 2022
Fiscal years 2020
Allowance for Credit Losses
1,394
(415 )
(112 )
12
879
(431 )
18
(95 )
371
$
$
$
We record allowances for doubtful accounts for the estimated probable losses on uncollected accounts receivable. The allowance is based upon the
credit worthiness of our customers, our historical experience, the age of the receivable, and current market and economic conditions. Receivables are
written off against these allowances in the period they are determined to be uncollectible. For the year ended September 30, 2020, the activity related to the
allowance for doubtful accounts was as follows (dollars in thousands):
Balance at September 30, 2019
Bad debt provisions
Write-offs, net of recoveries
Balance at September 30, 2020
(k) Research and Development
Allowance for
Doubtful
Accounts
865
704
(175 )
1,394
$
Research and development (“R&D”) costs related to software that is or will be sold or licensed externally to third-parties, or for which a substantive
plan exists to sell or license such software in the future, incurred subsequent to the establishment of technological feasibility, but prior to the general release
of the product, are capitalized and amortized to cost of revenue over the estimated useful life of the related products. We have determined that technological
feasibility is reached shortly before the general release of the software products. Costs incurred after technological feasibility is established have not been
material. R&D costs are otherwise expensed as incurred.
(l) Income Taxes
We account for income taxes using the assets and liabilities method, as prescribed by ASC No. 740, Income Taxes, or ASC 740.
Deferred Taxes
Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement
carrying amount of assets and liabilities and their respective tax bases. The method also requires the recognition of future tax benefits such as net operating
loss carryforwards, to the extent that realization of such benefits is more likely than not after consideration of all available evidence. As the income tax
returns are not due and filed until after the completion of our annual financial reporting requirements, the amounts recorded for the current period reflect
estimates for the tax-based activity for the period. In addition, estimates are often required with respect to, among other things, the appropriate state and
foreign income tax rates to use, the potential utilization of operating loss carry-forwards and valuation allowance required, if any, for tax assets that may not
be realizable in the future. Tax laws and tax rates vary substantially in these jurisdictions and are subject to change given the political and economic
climate. We report and pay income tax based on operational results and applicable law. Our tax provision contemplates tax rates currently in effect to
determine both our currency and deferred tax positions.
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Any significant fluctuations in rates or changes in tax laws could cause our estimates of taxes we anticipate either paying or recovering in the future
to change. Such changes could lead to either increases or decreases in our effective tax rates.
We have historically estimated the future tax consequences of certain items, including accruals that cannot be deducted for income tax purposes until
such expenses are paid or the related assets are disposed. We believe the procedures and estimates used in our accounting for income taxes are reasonable
and in accordance with established tax law. The income tax estimates used have not resulted in material adjustments to income tax expense in subsequent
period when the estimates are adjusted to the actual filed tax return amounts.
Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the fiscal years in which those
temporary differences are expected to be recovered or settled. With respect to earnings expected to be indefinitely reinvested offshore, we do not accrue tax
for the repatriations of such foreign earnings.
Valuation Allowance
We regularly review our deferred tax assets for recoverability considering historical profitability, projected future taxable income, the expected
timing of the reversals of existing temporary differences and tax planning strategies. In assessing the need for a valuation allowance, we consider both
positive and negative evidence related to the likelihood of realization of the deferred tax assets. The weight given to the positive and negative evidence is
commensurate with the extent to which the evidence may be objectively verified. If positive evidence regarding projected future taxable income, exclusive
of reversing taxable temporary differences, existed it would be difficult for it to outweigh objective negative evidence of recent financial reporting losses.
During the third quarter of fiscal year 2022, we established a valuation allowance of $107.6 million against our deferred tax assets in the
Netherlands, which consists of tax amortizable intellectual property and net operating loss carryforwards. We determined we had new negative evidence,
based on updates to transfer pricing arrangements and changes to the earnings guidance for fiscal year 2022. We will continue to maintain a valuation
allowance against our Netherlands deferred tax assets until we believe it is more likely than not that these assets will be realized. If sufficient positive
evidence arises in the future indicating that all or a portion of the deferred tax assets meet the more likely than not standard, the valuation allowance would
be reversed accordingly in the period that such determination is made.
Uncertain Tax Positions
We operate in multiple jurisdictions through wholly owned subsidiaries and our global structure is complex. The estimates of our uncertain tax
positions involve judgments and assessment of the potential tax implications related to legal entity restructuring, intercompany transfer and acquisition or
divestures. We recognize tax benefits from uncertain tax positions only if it is more likely than not that the tax position will be sustained on examination by
the taxing authorities, based on the technical merits of the position. Our tax positions are subject to audit by taxing authorities across multiple global
jurisdictions and the resolution of such audits may span multiple years. Tax laws are complex and often subject to varied interpretations, accordingly, the
ultimate outcome with respect to taxes we may own may differ from the amounts recognized.
(m) Accumulated Other Comprehensive (Loss) Income
The components of accumulated other comprehensive (loss) income, reflected in the Consolidated Statements of Equity, consists of the following
(dollars in thousands):
Foreign currency translation adjustments
Net unrealized gains (losses) on post-retirement benefits
Net unrealized losses on available-for-sale securities
Accumulated other comprehensive (loss) income
September 30,
2022
2021
$
$
(33,895 ) $
594
(436 )
(33,737 ) $
3,284
(1,639 )
(11 )
1,634
No income tax provisions or benefits are recorded for foreign currency translation adjustments as the undistributed earnings in our foreign
subsidiaries are expected to be indefinitely reinvested.
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(n) Concentration of Risk
Financial instruments that potentially subject us to significant concentrations of credit risk primarily consist of trade accounts receivable. We
perform ongoing credit evaluations of our customers’ financial condition and limit the amount of credit extended when deemed appropriate. One customer
accounted for 17.4% of our Accounts receivable, net balance at September 30, 2022 . One customer accounted for 12.1% of our Accounts receivable, net
balance at September 30, 2021.
(o) Foreign Currency Translation
The functional currency of a foreign subsidiary is generally the local currency. We translate the financial statements of foreign subsidiaries to U.S.
dollars using month-end exchange rates for assets and liabilities, and average rates for the reporting period for revenues, costs, and expenses. We record
translation gains and losses in Accumulated other comprehensive (loss) income as a component of stockholders’ equity. We record net foreign exchange
transaction gains and losses resulting from the conversion of the transaction currency to the functional currency within Other income (expense), net.
Foreign currency transaction (gains) losses for the fiscal years ended September 30, 2022, 2021 and 2020 were $0.1 million, ($1.7) million, and $2.4
million, respectively.
(p) Net Parent Investment
In the Consolidated Statements of Equity, net parent investment represents the Parent’s historical investment in the Cerence business, accumulated
net earnings after taxes and the net effect of transactions with, and allocations from, the Parent.
(q) Stock-Based Compensation
Stock-based compensation primarily consists of restricted stock units with service or market/performance conditions. Equity awards are measured at
the fair market value of the underlying stock at the grant date. We recognize stock compensation expense using the straight-line attribution method over the
requisite service period. We record forfeitures as they occur. For performance-based restricted stock units, the compensation cost is recognized based on the
number of units expected to vest upon the achievement of the performance conditions. Shares are issued on the vesting dates net of the applicable statutory
tax withholding to be paid by us on behalf of our employees. As a result, fewer shares are issued to the employee than the number of awards outstanding.
We record a liability for the tax withholding to be paid by us as a reduction to Additional paid-in capital. We record any income tax effect related to stock-
based awards through the Consolidated Statements of Operations. Excess tax benefits are recognized as deferred tax assets upon settlement and are subject
to regular review for valuation allowance.
(r) Leases
We have entered into a number of facility and equipment leases which qualify as operating leases under GAAP. We also have a limited number of
equipment leases that qualify as financing leases. We determine if contracts with vendors represent a lease or have a lease component under GAAP at
contract inception. Our leases have remaining terms ranging from less than one year to six years. Some of our leases include options to extend or terminate
the lease prior to the end of the agreed upon lease term. For purposes of calculating lease liabilities, lease terms include options to extend or terminate the
lease when it is reasonably certain that we will exercise such options.
Operating lease right of use assets and liabilities are recognized based on the present value of the future minimum lease payments over the lease
term at the lease commencement date. As our leases generally do not provide an implicit rate, we use an estimated incremental borrowing rate in
determining the present value of future payments. The incremental borrowing rate represents an estimate of the interest rate we would incur at lease
commencement to borrow an amount equal to the lease payments on a collateralized basis over the term of a lease within a particular location and currency
environment.
Operating leases are included in Operating lease right of use assets, Short-term operating lease liabilities, and Long-term operating lease liabilities
on our Consolidated Balance Sheets as of September 30, 2022 and 2021. Finance leases are included in Property and equipment, net, Accrued expenses and
other current liabilities, and Other liabilities on our Consolidated Balance Sheets as of September 30, 2022 and 2021.
Lease costs for minimum lease payments is recognized on a straight-line basis over the lease term. For operating leases, costs are included within
Cost of revenues, Research and development, Sales and marketing, and General and administrative lines on the Consolidated Statements of Operations. For
financing leases, amortization of the finance right of use assets is included within Research and Development, Sales and marketing, and General and
administrative lines on the Consolidated Statements of Operations, and interest expense is included within Interest expense.
For operating leases, the related cash payments are included in the operating cash flows on the Consolidated Statements of Cash Flows. For
financing leases, the related cash payments for the principal portion of the lease liability are included in the financing cash
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flows on the Consolidated Statement of Cash Flows and the related cash payments for the interest portion of the lease liability are included within the
operating section of the Consolidated Statement of Cash Flows.
(s) Convertible Debt
We bifurcate the debt and equity (the contingently convertible feature) components of our convertible debt instruments in a manner that reflects our
nonconvertible debt borrowing rate at the time of issuance. The equity components of our convertible debt instruments are recorded within stockholders’
equity with an allocated issuance premium or discount. The debt issuance premium or discount is amortized to Interest expense in our Consolidated
Statements of Operations using the effective interest method over the expected term of the convertible debt.
We assess the short-term and long-term classification of our convertible debt on each balance sheet date. Whenever the holders have a contractual
right to convert, the carrying amount of the convertible debt is reclassified to current liabilities, with the corresponding equity component classified from
additional paid-in capital to mezzanine equity, as needed.
(t) Net (Loss) Income Per Share
Basic net (loss) income per share is computed using the weighted-average number of common shares outstanding during the period. Diluted net
(loss) income per share is computed using the weighted-average number of common shares, giving effect to potentially dilutive securities outstanding
during the period. Potentially dilutive securities consist of restricted stock units, contingently issuable shares, and potential issuance of stock upon
conversion of our Notes, as more fully described in Note 17. The dilutive effect of the Notes is reflected in net (loss) income per share by application of the
“if-converted” method. The “if-converted” method is only assumed in periods where such application would be dilutive. In applying the “if-converted”
method for diluted net (loss) income per share, we would assume conversion of the Notes at a ratio of 26.7271 shares of our common stock per $1,000
principal amount of the Notes. Assumed converted shares of our common stock are weighted for the period the Notes were outstanding.
(u) Recently Adopted Accounting Standards
None.
(v) Issued Accounting Standards Not Yet Adopted
From time to time, new accounting pronouncements are issued by the FASB and are adopted by us as of the specified effective dates. Unless
otherwise discussed, such pronouncements did not have or will not have a significant impact on our consolidated financial position, results of operations or
cash flows, or do not apply to our operations.
In March 2020, the FASB issued ASU No. 2020-04, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on
Financial Reporting, (“ASU 2020-04”). The update provides optional guidance for a limited period of time to ease the potential burden in accounting for
(or recognizing the effects of) contract modifications on financial reporting, caused by reference rate reform. ASU 2020-04 is effective for all entities as of
March 12, 2020 through December 31, 2022. We are currently evaluating the impact of the adoption of this standard on our consolidated financial
statements.
In August 2020, the FASB issued ASU No. 2020-06, Debt – Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and
Hedging – Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity, (“ASU
2020-06”). ASU 2020-06 simplifies the accounting for debt with conversion options, revises the criteria for applying the derivatives scope exception for
contracts in an entity’s own equity, and improves the consistency for the calculation of earnings per share. The guidance is effective for annual reporting
periods and interim periods within those annual reporting periods beginning after December 15, 2021, our fiscal year 2023. ASU 2020-06 is applicable to
our 3.00% Senior Convertible Notes due 2025.
We will adopt the new standard effective October 1, 2022 under the modified retrospective transition approach. We are currently evaluating the
impact of ASU 2020-06 relating to Long-term debt, Additional paid-in capital, and Other liabilities. We do not expect the adoption of the new standard to
have a material impact on our consolidated statement of operations and cash flows. We expect applying ASU 2020-06 will have a cumulative-effect
adjustment to Accumulated deficit as of October 1, 2022.
3. Revenue Recognition
We primarily derive revenue from the following sources: (1) royalty-based software license arrangements, (2) connected services, and (3)
professional services. Revenue is reported net of applicable sales and use tax, value-added tax and other transaction taxes imposed on the related transaction
including mandatory government charges that are passed through to our customers. We
81
account for a contract when both parties have approved and committed to the contract, the rights of the parties are identified, payment terms are identified,
the contract has commercial substance and collectability of consideration is probable.
Our arrangements with customers may contain multiple products and services. We account for individual products and services separately if they are
distinct—that is, if a product or service is separately identifiable from other items in the contract and if a customer can benefit from it on its own or with
other resources that are readily available to the customer.
We recognize revenue after applying the following five steps:
•
•
•
•
•
identification of the contract, or contracts, with a customer;
identification of the performance obligations in the contract, including whether they are distinct within the context of the contract;
determination of the transaction price, including the constraint on variable consideration;
allocation of the transaction price to the performance obligations in the contract; and
recognition of revenue when, or as, performance obligations are satisfied.
We allocate the transaction price of the arrangement based on the relative estimated SSP of each distinct performance obligation. In determining
SSP, we maximize observable inputs, when possible. Since prices vary from customer to customer based on customer relationship, volume discount and
contract type, in instances where the SSP is not directly observable, we estimate SSP by considering a number of data points, including cost of developing
and supplying each performance obligation; types of offerings; and gross margin objectives and pricing practices, such as contractually stated prices,
discounts offered, and applicable price lists.
We only include estimated amounts in the transaction price to the extent it is probable that a significant reversal of cumulative revenue recognized
will not occur when the uncertainty associated with the variable consideration is resolved. We reduce transaction prices for estimated returns and other
allowances that represent variable consideration under ASC 606, which we estimate based on historical return experience and other relevant factors, and
record a corresponding refund liability as a component of Accrued expenses and other current liabilities. Other forms of contingent revenue or variable
consideration are infrequent.
Revenue is recognized when control of these product or services are transferred to our customers, in an amount that reflects the consideration we
expect to be entitled to in exchange for those products or services.
We assess the timing of the transfer of products or services to the customer as compared to the timing of payments to determine whether a significant
financing component exists. In accordance with the practical expedient in ASC 606-10-32-18, we do not assess the existence of a significant financing
component when the difference between payment and transfer of deliverables is a year or less. If the difference in timing arises for reasons other than the
provision of finance to either the customer or us, no financing component is deemed to exist. The primary purpose of our invoicing terms is to provide
customers with simplified and predictable ways of purchasing our services, not to receive or provide financing from or to customers. We do not consider
set-up fees nor other upfront fees paid by our customers to represent a financing component.
Reimbursements for out-of-pocket costs generally include, but are not limited to, costs related to transportation, lodging and meals. Revenue from
reimbursed out-of-pocket costs is accounted for as variable consideration.
(a) Performance Obligations
Licenses
Embedded software and technology licenses operate without access to the external networks and information. Embedded licenses sold with non-
distinct professional services to customize and/or integrate the underlying software and technology are accounted for as a combined performance
obligation. Revenue from the combined performance obligation is recognized over time based upon the progress towards completion of the project, which
is measured based on the labor hours already incurred to date as compared to the total estimated labor hours.
Revenue from distinct embedded software and technology licenses, which do not require professional services to customize and/or integrate the
software license, is recognized at the point in time when the software and technology is made available to the customer and control is transferred. For
income statement presentation purposes, we separate distinct embedded license revenue from professional services revenue based on their relative SSPs.
Revenue from embedded software and technology licenses sold on a royalty basis, where the license of non-exclusive intellectual property is the
predominant item to which the royalty relates, is recognized in the period the usage occurs in accordance with ASC 606-10-55-65(A).
For royalty arrangements that include fixed consideration related to a minimum usage guarantees, the fixed consideration is recognized when the
software is made available to the customer.
82
Connected Services
Connected services, which allow our customers to use the hosted software over the contract period without taking possession of the software, are
provided on a usage basis as consumed or on a fixed fee subscription basis. Subscription basis revenue represents a single promise to stand-ready to provide
access to our connected services. Our connected services contract terms generally range from one to five years.
As each day of providing services is substantially the same and the customer simultaneously receives and consumes the benefits as access is
provided, we have determined that our connected services arrangements are a single performance obligation comprised of a series of distinct services.
These services include variable consideration, typically a function of usage. We recognize revenue as each distinct service period is performed (i.e.,
recognized as incurred).
Our connected service arrangements generally include services to develop, customize, and stand-up applications for each customer. In determining
whether these services are distinct, we consider dependence of the cloud service on the up-front development and stand-up, as well as availability of the
services from other vendors. We have concluded that the up-front development, stand-up and customization services are not distinct performance
obligations, and as such, revenue for these activities is recognized over the period during which the cloud-connected services are provided, and is included
within Connected services revenue. There can be instances where the customer purchases a software license that allows them to take possession of the
software to enable hosting by the customer or a third-party. For such arrangements, the performance obligation of the license is completed at a point in time
once the customer takes possession of the software.
Professional Services
Revenue from distinct professional services, including training, is recognized over time based upon the progress towards completion of the project,
which is measured based on the labor hours already incurred to date as compared to the total estimated labor hours.
(b) Significant Judgments
Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together
may require significant judgment. Our license contracts often include professional services to customize and/or integrate the licenses into the customer’s
environment. Judgment is required to determine whether the license is considered distinct and accounted for separately, or not distinct and accounted for
together with professional services. Furthermore, hybrid contracts that contain both embedded and connected license and professional services are analyzed
to determine if the products and services are distinct or have stand-alone functionality to determine the revenue treatment.
We allocate the transaction price of the arrangement based on the relative estimated SSP of each distinct performance obligation. Judgment is
required to determine the SSP for each distinct performance obligation. In determining SSP, we maximize observable inputs, when possible. Since our
prices vary from customer to customer based on customer relationship, volume discount and contract type, there are instances where the SSP is not directly
observable. In such instances, we estimate SSP by considering a number of data points, including cost of developing and supplying each performance
obligation; types of offerings; and gross margin objectives and pricing practices, such as contractually stated prices, discounts offered, and applicable price
lists. These factors may vary over time, depending upon the unique facts and circumstances related to each deliverable. We review the SSP for each distinct
performance obligation on a periodic basis, or when the underlying factors are deemed to have changed, and make updates when appropriate.
(c) Disaggregated Revenue
Revenues, classified by the major geographic region in which our customers are located, for the fiscal years ended September 30, 2022, 2021 and
2020 (dollars in thousands):
Revenues:
United States
Other Americas
Germany
Other Europe, Middle East and Africa
Japan
Other Asia-Pacific
Total net revenues
2022
Year Ended September 30,
2021
2020
100,564 $
99
74,550
15,579
74,480
62,619
327,891 $
135,033 $
175
114,936
29,964
62,840
44,234
387,182 $
129,338
16
100,674
25,394
50,936
24,609
330,967
$
$
83
Revenues within the United States, Germany, and Japan accounted for more than 10% of revenue for all periods presented.
Revenues relating to two customers accounted for $55.4 million, or 16.9%, and $48.9 million, or 14.9% of revenue for the fiscal year ended
September 30, 2022. During fiscal year 2022, certain existing variable long-term contracts with our largest customer were converted into minimum
purchase commitment deals. The estimated future revenues related to these long-term contracts was previously included in our variable backlog, which
includes estimated future revenues from variable forecasted revenues related to our embedded and connected business. The minimum purchase
commitment deals accounted for $47.1 million of revenue for fiscal year 2022. The cash associated with these deals is expected to be collected over the
distribution period, which could be up to five years.
Revenues relating to two customers accounted for $72.0 million, or 18.6%, and $41.6 million, or 10.8% of revenue for the fiscal year ended
September 30, 2021. Revenues relating to one customer accounted for $76.9 million, or 23.2%, of revenue for the fiscal year ended September 30, 2020.
(d) Contract Acquisition Costs
In conjunction with the adoption of ASC 606, we are required to capitalize certain contract acquisition costs. The capitalized costs primarily relate to
paid commissions. In accordance with the practical expedient in ASC 606-10-10-4, we apply a portfolio approach to estimate contract acquisition costs for
groups of customer contracts. We elect to apply the practical expedient in ASC 340-40-25-4 and will expense contract acquisition costs as incurred where
the expected period of benefit is one year or less. Contract acquisition costs are deferred and amortized on a straight-line basis over the period of benefit,
which we have estimated to be, on average, between one and eight years. The period of benefit was determined based on an average customer contract
term, expected contract renewals, changes in technology and our ability to retain customers, including canceled contracts. We assess the amortization term
for all major transactions based on specific facts and circumstances. Contract acquisition costs are classified as current or noncurrent assets based on when
the expense will be recognized. The current and noncurrent portions of contract acquisition costs are included in Prepaid expenses and other current assets,
and in Other assets, respectively. As of September 30, 2022 and 2021, we had $8.3 million and $6.9 million of contract acquisition costs. We had
amortization expense of $2.5 million, $1.9 million and $1.5 million related to these costs during the fiscal years ended September 30, 2022, 2021 and 2020.
There was no impairment related to contract acquisition costs.
(e) Capitalized Contract Costs
We capitalize incremental costs incurred to fulfill our contracts that (i) relate directly to the contract, (ii) are expected to generate resources that will
be used to satisfy our performance obligation under the contract, and (iii) are expected to be recovered through revenue generated under the contract. Our
capitalized costs consist primarily of setup costs, such as costs to standup, customize and develop applications for each customer, which are incurred to
satisfy our stand-ready obligation to provide access to our connected offerings. These contract costs are expensed to cost of revenue as we satisfy our stand-
ready obligation over the contract term which we estimate to be between one and eight years, on average. The contract term was determined based on an
average customer contract term, expected contract renewals, changes in technology, and our ability to retain customers, including canceled contracts. We
classify these costs as current or noncurrent based on the timing of when we expect to recognize the expense. The current and noncurrent portions of
capitalized contract fulfillment costs are presented as Deferred costs.
We had amortization expense of $10.2 million, $15.4 million and $12.0 million related to these costs during the fiscal years ended September 30,
2022, 2021 and 2020, respectively. There was no impairment related to contract costs capitalized.
(f) Trade Accounts Receivable and Contract Balances
We classify our right to consideration in exchange for deliverables as either a receivable or a contract asset. A receivable is a right to consideration
that is unconditional (i.e. only the passage of time is required before payment is due). We present such receivables in Accounts receivable, net in our
Consolidated Balance Sheets at their net estimated realizable value. We maintain an allowance for credit losses to provide for the estimated amount of
receivables and contract assets that may not be collected. The allowance is based upon an assessment of customer creditworthiness, historical payment
experience, the age of outstanding receivables and other applicable factors.
Our contract assets and liabilities are reported in a net position on a contract-by-contract basis at the end of each reporting period.
Contract assets include unbilled amounts from long-term contracts when revenue recognized exceeds the amount billed to the customer, and right to
payment is not solely subject to the passage of time. The current and noncurrent portions of contract assets are
84
included in Prepaid expenses and other current assets and in Other assets, respectively. The table below shows significant changes in contract assets (dollars
in thousands):
Balance as of September 30, 2020
Revenues recognized but not billed
Amounts reclassified to accounts receivable, net
Balance as of September 30, 2021
Revenues recognized but not billed
Amounts reclassified to accounts receivable, net
Foreign exchange impact on ending balance
Balance as of September 30, 2022
$
$
$
Contract assets
30,277
89,217
(60,351 )
59,143
96,409
(67,765 )
(11,495 )
76,292
Our contract liabilities, which we present as Deferred revenue, consist of advance payments and billings in excess of revenues recognized. We
classify deferred revenue as current or noncurrent based on when we expect to recognize the revenues. The table below shows significant changes in
deferred revenue (dollars in thousands):
Balance as of September 30, 2020
Amounts billed but not recognized
Revenue recognized
Balance as of September 30, 2021
Amounts billed but not recognized
Revenue recognized
Foreign exchange impact on ending balance
Balance as of September 30, 2022
(g) Remaining Performance Obligations
$
$
$
Deferred revenue
324,729
105,540
(153,532 )
276,737
96,165
(130,770 )
(3,498 )
238,634
The following table includes estimated revenue expected to be recognized in the future related to performance obligations that are unsatisfied or
partially unsatisfied at September 30, 2022 (dollars in thousands):
Total revenue
Within One
Year
157,549 $
$
Two to Five
Years
Greater
than
Five Years
Total
145,949 $
19,957 $
323,455
The table above includes fixed backlogs and does not include variable backlogs derived from contingent usage-based activities, such as royalties and
usage-based connected services.
4. Earnings Per Share
Basic earnings per share is computed by dividing net (loss) income by the weighted-average number of shares of common stock outstanding during
the period. Diluted earnings per share is computed by dividing net (loss) income by the weighted-average number of shares of common stock outstanding
during the period, increased to include the number of shares of common stock that would have been outstanding had potential dilutive shares of common
stock been issued. The dilutive effect of restricted stock units is reflected in diluted net (loss) income per share by applying the treasury stock method.
The dilutive effect of the Notes (as defined in Note 17) is reflected in net (loss) income per share by application of the “if-converted” method. The
“if-converted” method is only assumed in periods where such application would be dilutive. In applying the “if-converted” method for diluted net (loss)
income per share, we would assume conversion of the Notes at a ratio of 26.7271 shares
85
of our common stock per $1,000 principal amount of the Notes. Assumed converted shares of our common stock are weighted for the period the Notes
were outstanding.
The following table presents the reconciliation of the numerator and denominator for calculating net (loss) income per share:
in thousands, except per share data
Numerator:
Net (loss) income
Denominator:
Weighted average common shares outstanding - basic
Dilutive effect of restricted stock awards
Dilutive effect of contingently issuable stock awards
Weighted average common shares outstanding - diluted
Net (loss) income per common share:
Basic
Diluted
2022
September 30,
2021
2020
$
(310,826 ) $
45,893 $
(18,316 )
39,187
-
-
39,187
37,752
1,405
132
39,289
$
$
(7.93 ) $
(7.93 ) $
1.22 $
1.17 $
36,428
-
-
36,428
(0.50 )
(0.50 )
We exclude weighted-average potentially issuable shares from the calculations of diluted net (loss) income per share during the applicable periods
because their inclusion would have been anti-dilutive. The following table sets forth potential shares that were considered anti-dilutive for the fiscal years
ended September 30, 2022, 2021 and 2020:
in thousands
Restricted stock awards
Contingently issuable stock awards
Conversion option of our Notes
5. Fair Value Measurements
Year Ended September 30,
2022
2021
2020
227
8
4,677
-
-
4,677
1,058
151
1,538
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market
participants at the measurement date. Valuation techniques must maximize the use of observable inputs and minimize the use of unobservable inputs. When
determining fair value measurements for assets and liabilities recorded at fair value, we consider the principal or most advantageous market in which we
would transact and consider assumptions that market participants would use in pricing the asset or liability.
The classification of a financial asset or liability within the hierarchy is based upon the lowest level input that is significant to the fair value
measurement as of the measurement date as follows:
•
•
•
Level 1 - Inputs are unadjusted quoted prices in active markets for identical assets or liabilities.
Level 2 - Inputs are quoted prices for similar assets and liabilities in active markets or inputs that are observable for the asset or liability, either
directly or indirectly through market corroboration, for substantially the full term of the assets or liabilities.
Level 3 - Unobservable inputs that are supported by little or no market activity.
86
The following table presents information about our financial assets that are measured at fair value and indicates the fair value hierarchy of the
valuation inputs used (dollars in thousands) as of:
(a)
(b)
(b)
Level 1:
Money market funds $59,146 at cost
Government securities $4,976 at cost
Level 2:
Government securities $2,377 at cost
Time deposits, $1,472 at cost
Commercial paper, $7,648 at cost
Corporate bonds, $17,328 at cost
(c)
Debt securities, $2,000 at cost
Total assets
(b)
(b)
(a)
(a)
Level 1:
Money market funds
Level 2:
Time deposits, $2,965 at cost
Commercial paper, $18,080 at cost
(b)
Corporate bonds, $19,704 at cost
(c)
Debt securities, $2,000 at cost
Total assets
(a)
(b)
Fair Value
Cash and Cash Equivalents
Marketable Securities
September 30, 2022
$
59,138
4,892
$
2,361
1,472
7,647
17,001
2,000
94,511
$
$
$
59,138
-
-
1,472
-
-
-
60,610
$
Fair Value
Cash and Cash Equivalents
Marketable Securities
September 30, 2021
$
75,873
$
75,873
$
2,965
18,080
19,694
2,000
118,612
$
$
2,965
-
-
-
78,838
$
-
4,892
2,361
-
7,647
17,001
-
31,901
-
-
18,080
19,694
-
37,774
(a)
(b)
(c)
Money market funds and other highly liquid investments with original maturities of 90 days or less are included within Cash and cash
equivalents in the Consolidated Balance Sheets.
Government securities, commercial paper and corporate bonds with original maturities greater than 90 days are included within
Marketable securities in the Consolidated Balance Sheets and classified as current or noncurrent based upon whether the maturity of the
financial asset is less than or greater than 12 months.
Debt securities are included within Prepaid and other current assets in the Consolidated Balance Sheets and classified as current given the
maturity of the financial asset is less than 12 months.
During the fiscal year ended September 30, 2022, we recorded unrealized losses related to our marketable securities of $0.4 million within
Accumulated other comprehensive income. During the fiscal years ended September 30, 2021 and 2020, we recorded an immaterial amount of unrealized
losses related to our marketable securities.
The carrying amounts of certain financial instruments, including cash held in banks, accounts receivable, and accounts payable, approximate fair
value due to their short-term maturities and are excluded from the fair value tables above.
Derivative financial instruments are recognized at fair value and are classified within Level 2 of the fair value hierarchy. See Note 6 – Derivative
Financial Instruments for additional details.
Long-term debt
The estimated fair value of our Long-term debt is determined by Level 2 inputs and is based on observable market data including prices for similar
instruments. As of September 30, 2022 and 2021, the estimated fair value of our Notes was $155.3 million and $469.0 million, respectively. The Notes are
recorded at face value less unamortized debt discount and transaction costs on our Consolidated Balance Sheets. The carrying amount of the Senior Credit
Facilities (as defined in Note 17) approximates fair value given the underlying interest rate applied to such amounts outstanding is currently set to the
prevailing market rate.
Equity securities
We have non-controlling equity investment in privately held companies. We evaluated the equity investments under the voting model and concluded
consolidation was not applicable. We accounted for the investments by electing the measurement alternative for investments without readily determinable
fair values and for which we do not have the ability to exercise significant influence. The non-marketable equity securities are carried at cost less any
impairment, plus or minus adjustments resulting from observable price
87
changes in orderly transactions for the identical or a similar investment of the same issuer, which is recorded within the Consolidated Statements of
Operations. Investments without readily determinable fair values were $3.1 million and $2.6 million as of September 30, 2022 and 2021, respectively.
These investments are included within Other assets on the Consolidated Balance Sheets. There have been no adjustments to the carrying value of the
investment resulting from impairments or observable price changes.
6. Derivative Financial Instruments
We operate internationally and, in the normal course of business, are exposed to fluctuations in foreign currency exchange rates related to third-
party vendor and intercompany payments for goods and services within our non-U.S. subsidiaries. We use foreign exchange forward contracts that are not
designated as hedges to manage currency risk. The contracts can have maturities up to three years. As of September 30, 2022 and 2021, the total notional
amount of forward contracts was $63.3 million and $61.0 million, respectively. As of September 30, 2022 and 2021, the weighted-average remaining
maturity of these instruments was approximately 10.5 and 11.9 months, respectively.
The following table summarizes the fair value and presentation in the Consolidated Balance Sheets for derivative instruments as of September 30,
2022 and 2021 (dollars in thousands):
Derivatives not designated as hedges
Classification
September 30, 2022
September 30, 2021
Foreign currency forward contracts
Foreign currency forward contracts
Foreign currency forward contracts
Foreign currency forward contracts
Prepaid expenses and other current assets
Other assets
Accrued expenses and other current liabilities
Other liabilities
$
$
1,627
660
1,812
711
1,235
365
131
148
Fair Value
The following tables display a summary of the income related to foreign currency forward contracts within the Consolidated Statements of
Operations for the fiscal years ended September 30, 2022, 2021 and 2020 (dollars in thousand):
Derivatives not designated as hedges
Foreign currency forward contracts
Classification
Other income (expense),
net
$
2022
Gain recognized in earnings
Year Ended September 30,
2021
2020
860
$
2,512
$
-
7. Goodwill and Intangible Assets
(a) Goodwill
Due to macroeconomic conditions, we concluded that indicators of impairment were present and performed an interim quantitative impairment test
as of June 30, 2022. The fair value of our reporting unit was determined using a combination of the income approach and the market approach. We
weighted the methodologies appropriately to estimate a fair value of approximately $995 million as of June 30, 2022. The estimated fair value exceeded the
$950 million carrying value of our reporting unit by approximately $45 million, or 5% of the carrying value. Based upon the results of the impairment test,
no goodwill impairment was recorded as of June 30, 2022.
On July 1, 2022, we completed the annual impairment testing of our goodwill. We elected to rely on a qualitative assessment and as a result we
determined it is more likely than not that the fair value of our reporting unit is greater than its carrying amount.
At September 30, 2022, we performed a quantitative impairment test. We concluded indicators of impairment were present due to the current
macroeconomic conditions, including continued declines in our stock price. The fair value of our reporting unit was determined using a combination of the
income approach and the market approach. For the income approach, fair value was determined based on the present value of estimated future after-tax
cash flows using our multi-year target plan, discounted at an appropriate risk-adjusted rate. For the market approach, we used a valuation technique in
which values were derived based on valuation multiples of comparable publicly traded companies.
We weighted the methodologies appropriately to estimate a fair value of approximately $713.0 million as of September 30, 2022. The carrying value
of our reporting unit exceeded the estimated fair value. Based upon the results of the impairment test, we recorded a goodwill impairment charge of $213.7
million within the Consolidated Statement of Operations.
The changes in the carrying amount of goodwill for the fiscal years ended September 30, 2022 and 2021 were as follows (dollars in thousands):
88
Balance as of October 1, 2020
Effect of foreign currency translation
Balance as of September 30, 2021
Goodwill impairment
Effect of foreign currency translation
Balance as of September 30, 2022
(b) Intangible Assets, Net
$
$
Total
1,128,198
313
1,128,511
(213,720 )
(23,989 )
890,802
On September 30, 2022, we concluded that indicators of impairment were present and performed a test for recoverability of our long-lived asset
group as of September 30, 2022. Based upon the results of the recoverability test, we determined that the carrying amounts of the long-lived asset group
were considered recoverable, concluding the test and resulting in no impairment of our long-lived asset group as of September 30, 2022.
The following tables summarizes the gross carrying amounts and accumulated amortization of intangible assets by major class (dollars in
thousands):
Customer relationships
Technology and patents
Total
Customer relationships
Technology and patents
Total
Gross
Carrying
Amount
$
$
104,498 $
88,600
193,098 $
Gross
Carrying
Amount
$
$
110,485 $
90,738
201,223 $
Accumulated
Amortization
September 30, 2022
Net
Carrying
Amount
Weighted Average
Remaining Life
(Years)
(95,315 ) $
(88,083 )
(183,398 ) $
9,183
517
9,700
Accumulated
Amortization
September 30, 2021
Net
Carrying
Amount
Weighted Average
Remaining Life
(Years)
(88,638 ) $
(87,237 )
(175,875 ) $
21,847
3,501
25,348
1.7
1.2
2.2
0.9
Amortization expense for acquired technology and patents is included in the cost of revenue in the accompanying Consolidated Statements of
Operations and amounted to $3.0 million, $7.5 million, and $8.3 million for the fiscal years ended September 30, 2022, 2021, and 2020, respectively.
Amortization expense for customer relationships is included in operating expenses and amounted to $11.5 million, $12.7 million, and $12.6 million in the
fiscal years ended September 30, 2022, 2021, and 2020, respectively. Estimated amortization for each of the five succeeding years and thereafter as of
September 30, 2022, is as follows (dollars in thousands):
Year Ending September 30,
2023
2024
2025
Total
Cost of
Revenues
Operating
Expenses
Total
414 $
103
—
517 $
5,774 $
2,085
1,324
9,183 $
6,188
2,188
1,324
9,700
$
$
89
8. Property and Equipment, Net
Property and equipment, net consisted of the following (dollars in thousands):
Machinery and equipment
Computers, software and equipment
Leasehold improvements
Furniture and fixtures
Finance leases
Construction in progress
Subtotal
Less: accumulated depreciation
Total
Useful Life
(In years)
3-5
3-5
2-15
5-7
September 30,
2022
2021
$
$
10,800 $
61,566
10,110
3,554
3,425
—
89,455
(51,748 )
37,707 $
7,577
42,380
8,493
4,150
3,437
12,379
78,416
(46,911 )
31,505
As of September 30, 2022 and 2021, the net book value of capitalized internal-use software costs was $21.2 million and $5.3 million, respectively,
which are included within computers, software, and equipment. Depreciation expense for the fiscal years ended September 30, 2022, 2021, and 2020 was
$9.4 million, $9.5 million, and $9.2 million, respectively, which included amortization expense of $3.7 million, $3.4 million, and $3.1 million, respectively,
for internally developed software costs.
The following table presents our property and equipment, net by geography at September 30, 2022 and 2021 (dollars in thousands):
Long-lived assets:
United States
Canada
Germany
Other countries
Total long-lived assets
9. Accrued Expenses and Other Current Liabilities
Accrued expenses and other current liabilities consisted of the following (dollars in thousands):
Compensation
Sales and other taxes payable
Cost of revenue related liabilities
Professional fees
Interest payable
Other
Total
90
September 30,
2022
2021
28,779 $
2,252
1,866
4,810
37,707 $
September 30,
2022
2021
19,710 $
4,598
4,257
3,866
1,828
13,731
47,990 $
22,550
2,850
1,973
4,132
31,505
39,536
8,574
4,634
3,604
1,919
6,200
64,467
$
$
$
$
10. Restructuring and Other Costs, Net
Restructuring and other costs, net include restructuring expenses as well as other charges that are unusual in nature, are the result of unplanned
events, and arise outside of the ordinary course of our business such as employee severance costs, costs for consolidating duplicate facilities, and separation
costs directly attributable to the Cerence business becoming a standalone public company.
The following table sets forth the fiscal year ended September 30, activity relating to restructuring charges (dollars in thousands):
Balance at October 1, 2019
$
Restructuring and other costs, net
Non-cash adjustment
Cash payments
Foreign exchange impact on ending balance
Balance at September 30, 2020
Restructuring and other costs, net
Non-cash adjustment
Cash payments
Foreign exchange impact on ending balance
Balance at September 30, 2021
Restructuring and other costs, net
Non-cash adjustment
Cash payments
Foreign exchange impact on ending balance
Balance at September 30, 2022
Fiscal Year 2022
$
Personnel
Facilities
Restructuring
Subtotal
Other
Total
489 $
3,694
—
(3,420 )
1
764
1,689
—
(839 )
6
1,620
1,676
—
(2,021 )
2
1,277 $
26 $
1,037
(1,031 )
(26 )
4
10
1,394
1,809
(1,265 )
(67 )
1,881
673
(708 )
(188 )
(58 )
1,600 $
515 $
4,731
(1,031 )
(3,446 )
5
774
3,083
1,809
(2,104 )
(61 )
3,501
2,349
(708 )
(2,209 )
(56 )
2,877 $
3,876 $
11,727
—
(13,675 )
—
1,928
2,009
—
(2,403 )
—
1,534
6,616
(4,000 )
(1,873 )
—
2,277 $
4,391
16,458
(1,031 )
(17,121 )
5
2,702
5,092
1,809
(4,507 )
(61 )
5,035
8,965
(4,708 )
(4,082 )
(56 )
5,154
For the fiscal year ended September 30, 2022, we recorded restructuring and other costs, net of $9.0 million, which included $4.0 million, net of
$5.0 million in forfeitures, in stock-based compensation due to the resignation of our former CEO and the resulting modification of certain stock-based
awards, $2.6 million other one-time charges, $1.7 million severance charge related to the elimination of personnel, and $0.7 million charge resulting from
the closure of facilities that will no longer be utilized.
Fiscal Year 2021
For the fiscal year ended September 30, 2021, we recorded restructuring and other costs, net of $5.1 million, which included a $1.7 million
severance charge related to the elimination of personnel across multiple functions, $1.4 million charge resulting from the closure of facilities that will no
longer be utilized, and $2.0 million related to other one-time charges.
Fiscal Year 2020
For the fiscal year ended September 30, 2020, we recorded restructuring and other costs, net of $16.5 million, which included a $3.7 million
severance charge related to the elimination of personnel across multiple functions, $1.0 million resulting from the restructuring of facilities that will no
longer be utilized, and $11.7 million related to costs incurred to establish the Cerence business as a standalone public company.
11. Leases
We have entered into a number of facility and equipment leases which qualify as operating leases under GAAP. We also have a limited number of
equipment leases that qualify as finance leases. We determine if contracts with vendors represent a lease or have a lease component under GAAP at contract
inception. Our leases have remaining terms ranging from less than one year to six years. Some of our leases include options to extend or terminate the lease
prior to the end of the agreed upon lease term. For purposes of calculating lease liabilities, lease terms include options to extend or terminate the lease when
it is reasonably certain that we will exercise such options.
91
Operating lease right of use assets and liabilities are recognized based on the present value of the future minimum lease payments over the lease
term at the lease commencement date. As our leases generally do not provide an implicit rate, we use an estimated incremental borrowing rate in
determining the present value of future payments. The incremental borrowing rate represents an estimate of the interest rate we would incur at lease
commencement to borrow an amount equal to the lease payments on a collateralized basis over the term of a lease within a particular location and currency
environment.
The following table presents certain information related to lease term and incremental borrowing rates for leases as of September 30, 2022 and 2021:
Weighted-average remaining lease term (in months):
Operating leases
Finance leases
Weighted-average discount rate:
Operating leases
Finance leases
September 30, 2022
September 30, 2021
46.5
35.6
3.7 %
4.4 %
52.2
47.1
5.1 %
4.4 %
The following table presents the lease-related assets and liabilities reported in the Consolidated Balance Sheets as of September 30, 2022 and 2021
(dollars in thousands):
Assets
Operating lease assets
Finance lease assets
Total lease assets
Liabilities
Current
Operating
Finance
Noncurrent
Operating
Finance
Total lease liability
Classification
September 30, 2022
September 30, 2021
Operating lease right of use assets
Property and equipment, net
Short-term operating lease liabilities
Accrued expenses and other current
liabilities
Long-term operating lease liabilities
Other liabilities
$
$
$
$
$
14,702 $
1,259
15,961 $
5,071 $
441
11,375 $
802
17,689 $
14,901
1,700
16,601
4,562
430
12,216
1,234
18,442
The following table presents lease expense for the fiscal years ended September 30, 2022, 2021 and 2020 (dollars in thousands):
Finance lease costs:
Amortization of right of use asset
Interest on lease liability
Operating lease cost
Variable lease cost
Sublease income
Total lease cost
Year Ended September 30,
2022
2021
2020
$
$
435
50
6,788
3,492
(187 )
10,578
$
$
410
63
7,619
2,142
(207 )
10,027
$
$
255
22
8,245
1,060
(206 )
9,376
For the fiscal years ended September 30, 2022, 2021 and 2020 cash payments related to operating leases were $6.7 million, $7.8 million and $8.0
million, respectively. For the fiscal years ended September 30, 2022, 2021 and 2020, cash payments related to financing leases were $0.5 million, $0.5
million and $0.1 million, respectively, of which an immaterial amount related to the interest portion of the lease liability. For the fiscal years ended
September 30, 2022, 2021 and 2020 right of use assets obtained in exchange for lease obligations were $7.5 million, $2.9 million and $7.9 million,
respectively.
92
The table below reconciles the undiscounted future minimum lease payments under non-cancelable leases to the total lease liabilities recognized on
the Consolidated Balance Sheet as of September 30, 2022 (dollars in thousands):
Year Ending September 30,
2023
2024
2025
2026
2027
Thereafter
Total future minimum lease payments
Less effects of discounting
Total lease liabilities
Reported as of September 30, 2022
Short-term lease liabilities
Long-term lease liabilities
Total lease liabilities
12. Stockholders’ Equity
Share-based Compensation Plans
Operating Leases
Financing Leases
Total
$
$
$
$
$
$
5,570
4,758
3,221
1,759
1,455
819
17,582
$
(1,136 )
$
16,446
5,071
11,375
16,446
$
$
$
476
417
362
53
—
—
1,308
$
(65 )
$
1,243
441
802
1,243
$
$
6,046
5,175
3,583
1,812
1,455
819
18,890
(1,201 )
17,689
5,512
12,177
17,689
Per the Amended and Restated Certificate of Incorporation, which was adopted on October 1, 2019, 600,000,000 shares of capital stock have been
authorized, consisting of 40,000,000 shares of Preferred Stock, par value $0.01 per share, or (“Preferred Stock”), and 560,000,000 shares of Common
Stock, par value $0.01 per share (“Common Stock”).
On October 2, 2019, we registered the issuance of 6,350,000 shares of Common Stock, consisting of 5,300,000 shares of Common Stock reserved
under the Cerence 2019 Equity Incentive Plan, (“Equity Incentive Plan”), and 1,050,000 shares of Common Stock that are reserved for issuance under the
Cerence 2019 Employee Stock Purchase Plan (“ESPP”). The Equity Incentive Plan provides for the grant of incentive stock options, stock awards, stock
units, stock appreciation rights, and certain other stock-based awards. The shares available for issuance will automatically increase on January 1st of each
year, by the lesser of (A) three percent (3%) of the number of shares of Common Stock outstanding as of the close of business on the immediately
preceding December 31st; and (B) the number of shares of Common Stock determined by the Board on or prior to such date for such year. Awards issued
under the Plan may not have a term greater than ten years from the date of grant.
Restricted Awards
The fair value of Restricted Awards, including Restricted Stock Units and Restricted Stock, is measured based upon the market price of the
underlying common stock as of the date of grant. Restricted Awards generally vest over a period of two to four years. We also include certain Restricted
Awards with vesting solely dependent on the achievement of specified performance targets. The fair value of Restricted Awards is amortized to expense
over the awards applicable requisite service period. In the event that the employees’ employment with us terminates, or in the case of awards with only
performance targets, if those targets are not met, any unvested shares are forfeited.
In fiscal years ended September 30, 2022, 2021 and 2020, we withheld payroll taxes totaling $49.0 million, $46.0 million and $9.4 million,
respectively, related to the vesting of Restricted Awards.
93
Restricted Units are not included in issued and outstanding common stock until the shares are vested and released. The table below summarizes
activity related to Restricted Stock Units:
Time-Based
Shares
1,420,532
808,938
(1,029,85
4 )
(203,600 )
996,016
Non-vested at September 30, 2021
Granted
Vested
Forfeited
Non-vested at September 30, 2022
Expected to vest
Employee Stock Purchase Plan
Non-Vested Restricted Stock Units
Performance-
Based Shares
Total Shares
Weighted-
Average
Grant-Date
Fair Value
Weighted-
Average
Remaining
Contractual
Term (years)
Aggregate
Intrinsic
Value
(in thousands)
654,619 2,075,151 $
390,025 1,198,963 $
(1,504,53
5 ) $
(474,681 )
(134,968 )
(338,568 ) $
434,995 1,431,011 $
1,431,011 $
44.20
69.43
58.70
54.35
62.49
62.49
0.70 $
0.70 $
22,524
22,524
On October 2, 2019, we adopted the ESPP and approved 1,050,000 shares for issuance under this plan. The ESPP is administered by our Board of
Directors’ Compensation Committee.
The ESPP provides for the issuance of shares of our common stock to participating employees. At the end of each designated offering period, which
occurs every six months on February 15 and August 15, employees can elect to purchase shares of our common stock with contributions of up to 12% of
their base pay, accumulated via payroll deductions, at an amount equal to 85% of the lower of our stock price on (i) the first day of the offering period, or
(ii) the last day of the offering period.
We use the Black-Scholes option pricing model to calculate the fair value of shares issued under the ESPP. The Black-Scholes model relies on a
number of key assumptions to calculate estimated fair values. The following table sets forth the weighted-average key assumptions and fair value results for
shares issued under the ESPP during the fiscal years ended September 30, 2022, 2021 and 2020:
Expected dividend yield
Risk-free interest rate
Expected volatility
Expected life (in years)
Weighted-average fair value of shares issued (per share)
Year Ended September 30,
2022
2021
2020
0.00 %
0.41 %
69.58 %
0.50
27.54
$
0.00 %
0.10 %
96.61 %
0.50
35.13 $
0.00 %
1.56 %
58.18 %
0.50
8.93
$
94
The following table sets forth the quantities and average prices of shares issued under the ESPP for the fiscal years ended September 30, 2022, 2021
and 2020:
Shares issued under the ESPP
Average price of shares issued
Stock-based Compensation
Year Ended September 30,
2022
2021
2020
$
80,417
28.18
$
44,172
73.40 $
63,503
20.66
During the fiscal years ended September 30, 2022, 2021 and 2020, we recognize stock-based compensation expenses over the requisite service
periods. Our share-based awards are classified within equity. Stock-based compensation for the anticipated Restricted Awards has been adjusted to reflect
our estimated achievement under the modified targets and is recorded prospectively over the requisite service period.
The amounts included in the Consolidated Statements of Operations related to stock-based compensation are as follows (dollars in thousands):
Cost of connected services
Cost of professional services
Research and development
Sales and marketing
General and administrative
Restructuring and other costs, net
Total
2022
Year Ended September 30,
2021
2020
$
$
499 $
3,267
10,196
3,569
6,545
4,000
28,076 $
865 $
4,895
16,538
12,533
25,724
—
60,555 $
1,382
4,191
13,944
9,580
18,188
—
47,285
For the fiscal year ended September 30, 2022, we had lower stock-based compensation expense relating to our performance-based restricted stock
units. Compensation cost for our performance-based restricted stock units is recognized based on the number of units expected to vest upon the
achievement of the performance conditions. During the fiscal year ended September 30, 2022, we recorded $4.0 million, net of $5.0 million in forfeitures,
in stock-based compensation due to the resignation of our former CEO and the resulting modification of certain stock-based awards in Restructuring and
other costs, net. We recorded $2.4 million, net of $0.2 million in forfeitures, in stock-based compensation due to the retirement of our former CFO and
resignation of our former General Counsel and the resulting modification of certain stock-based awards.
13. Commitments and Contingencies
Litigation and Other Claims
Similar to many companies in the software industry, we are involved in a variety of claims, demands, suits, investigations and proceedings that arise
from time to time relating to matters incidental to the ordinary course of our business, including at times actions with respect to contracts, intellectual
property, employment, benefits and securities matters. At each balance sheet date, we evaluate contingent liabilities associated with these matters in
accordance with ASC 450 Contingencies. If the potential loss from any claim or legal proceeding is considered probable and the amount can be reasonably
estimated, we accrue a liability for the estimated loss. Significant judgments are required for the determination of probability and the range of the outcomes,
and estimates are based only on the best information available at the time. Due to the inherent uncertainties involved in claims and legal proceedings and in
estimating losses that may arise, actual outcomes may differ from our estimates. Contingencies deemed not probable or for which losses were not estimable
in one period may become probable, or losses may become estimable in later periods, which may have a material impact on our results of operations and
financial position. As of September 30, 2022, accrued losses were not material to our consolidated financial statements, and we do not expect any pending
matter to have a material impact on our consolidated financial statements.
City of Miami Fire Fighters’ and Police Officers’ Retirement Trust Action
On February 25, 2022, a purported shareholder class action captioned as City Of Miami Fire Fighters’ And Police Officers’ Retirement Trust v.
Cerence Inc. et al. (the "Securities Action") was filed in the United States District Court for the District of Massachusetts, naming the Company and two of
its former officers as defendants. Following the court's selection of a lead plaintiff and lead counsel, an amended complaint was filed on July 26, 2022. The
plaintiff claims to be suing on behalf of anyone who purchased the Company’s common stock between November 16, 2020 and February 4, 2022. The
lawsuit alleges that material misrepresentations and/or omissions of material fact regarding the Company’s operations, financial performance and prospects
were
95
made in the Company’s public disclosures during the period from November 16, 2020 to February 4, 2022, in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The plaintiff seeks unspecified monetary damages on behalf of the
putative class and an award of costs and expenses, including attorney’s fees. We intend to defend the claims vigorously. Given the uncertainty of litigation,
the preliminary stage of the case, and the legal standards that must be met for, among other things, class certification and success on the merits, we cannot
estimate the reasonably possible loss or range of loss that may result from this action.
Derivative Actions
On May 10 and 12, 2022, respectively, plaintiffs William Shafer and Peter Morse filed shareholder derivative complaints in the United States
District Court for the District of Massachusetts on behalf of Cerence Inc. against defendants (and former officers) Sanjay Dwahan and Mark J. Gallenberger
as well as board members Arun Sarin, Thomas Beaudoin, Marianne Budnik, Sanjay Jha, Kristi Ann Matus, Alfred Nietzel and current CEO and board
member Stefan Ortmanns. These actions contain substantially similar factual and legal contentions and, as such, on June 13, 2022, at the parties' request,
the court consolidated these derivative actions into a single action (the "Consolidated Derivative Action") and appointed Co-Lead Counsel for plaintiffs. In
addition, the parties agreed to stay the Consolidated Derivative Action pending a ruling on the forthcoming motion to dismiss in the Securities Action, and
the court has ordered that stay.
On October 19, 2022, plaintiff Melinda Hipp filed a shareholder derivative complaint in the Delaware Court of Chancery on behalf of Cerence Inc.
against the defendants named in the Consolidated Derivative Action and board member Douglas Davis. This complaint makes factual and legal contentions
substantially similar to those made in the Consolidated Derivative Actions.
Given the uncertainty of litigation, the preliminary stage of the cases, and the legal standards that must be met for, among other things, derivative
standing and success on the merits, we cannot estimate the reasonably possible loss or range of loss that may result from these derivative actions.
Guarantees and Other
We include indemnification provisions in the contracts we enter with customers and business partners. Generally, these provisions require us to
defend claims arising out of our products’ infringement of third-party intellectual property rights, breach of contractual obligations and/or unlawful or
otherwise culpable conduct. The indemnity obligations generally cover damages, costs and attorneys’ fees arising out of such claims. In most, but not all
cases, our total liability under such provisions is limited to either the value of the contract or a specified, agreed-upon amount. In some cases, our total
liability under such provisions is unlimited. In many, but not all cases, the term of the indemnity provision is perpetual. While the maximum potential
amount of future payments we could be required to make under all the indemnification provisions is unlimited, we believe the estimated fair value of these
provisions is minimal due to the low frequency with which these provisions have been triggered.
We indemnify our directors and officers to the fullest extent permitted by Delaware law, which provides among other things, indemnification to
directors and officers for expenses, judgments, fines, penalties and settlement amounts incurred by such persons in their capacity as a director or officer of
the Company, regardless of whether the individual is serving in any such capacity at the time the liability or expense is incurred. Additionally, in connection
with certain acquisitions, we agreed to indemnify the former officers and members of the boards of directors of those companies, on similar terms as
described above, for a period of six years from the acquisition date. In certain cases, we purchase director and officer insurance policies related to these
obligations, which fully cover the six-year period. To the extent that we do not purchase a director and officer insurance policy for the full period of any
contractual indemnification, and such directors and officers do not have coverage under separate insurance policies, we would be required to pay for costs
incurred, if any, as described above.
As of September 30, 2022, we have a $0.9 million letter of credit that is used as a security deposit in connection with our leased Bellevue,
Washington office space. In the event of default on the underlying lease, the landlord would be eligible to draw against the letter of credit. The letter of
credit is subject to aggregate reductions, provided that we are not in default under the underlying lease. We also have letters of credit in connection with
security deposits for other facility leases totaling $0.5 million in the aggregate. These letters of credit have various terms and expire during fiscal year 2023
and beyond, while some of the letters of credit may automatically renew based on the terms of the underlying agreements.
14. Pension and Other Post-Retirement Benefits
Defined Contribution Plans
We have established a retirement savings plan under Section 401(k) of the Internal Revenue Code (the “401(k) Plan”). The 401(k) Plan covers
substantially all of our U.S. employees who meet minimum age and service requirements, and allows participants to defer a portion of their annual
compensation on a pre-tax basis. We match 50% of employee contributions up to 6% of eligible
96
salary. We incurred charges for contributions to these 401(k) defined contribution plans of $0.5 million, $0.7 million, and $0.7 million for the fiscal years
ended September 30, 2022, 2021 and 2020, respectively.
Defined Benefit Pension Plans
We sponsor certain defined benefit pension plans that are offered primarily by our foreign subsidiaries. Many of these plans are required by local
regulatory requirements. We may deposit funds for these plans with insurance companies, third party trustees or into government-managed accounts
consistent with local regulatory requirements, as applicable.
The total defined benefit plan pension expenses incurred for these plans were $0.5 million, $0.9 million, and $0.5 million for the fiscal years ended
September 30, 2022, 2021 and 2020, respectively. Our aggregate projected benefit obligation and aggregate net liability for defined benefit plans as of
September 30, 2022 was $10.4 million and $4.9 million, as of September 30, 2021 was $14.7 million and $8.7 million, and as of September 30, 2020 was
$8.3 million and $7.1 million, respectively.
For the fiscal years ended September 30, 2022, 2021 and 2020, charges for contributions to defined benefit pension plans were not material to the
Consolidated Statements of Operations.
15. Relationship with Parent and Related Entities
In connection with the Spin-Off, we entered into several agreements with Nuance that set forth the principal actions taken or to be taken in
connection with the Spin-Off and that govern the relationship of the parties following the Spin-Off, including the following:
•
•
•
•
•
•
•
Separation and Distribution Agreement: We entered into a Separation and Distribution Agreement with Nuance in advance of the
Distribution. The Separation and Distribution Agreement sets forth our agreements with Nuance regarding the principal actions to be taken in
connection with the Spin-Off. It also sets forth other agreements that govern aspects of our relationship with Nuance following the Spin-Off.
Tax Matters Agreement: We entered into a Tax Matters Agreement with Nuance that governs the respective rights, responsibilities and
obligations of Nuance and us after the Distribution with respect to all tax matters (including tax liabilities, tax attributes, tax returns and tax
contests).
Transition Services Agreement: We entered into a Transition Services Agreement pursuant to which Nuance will provide us, and we will
provide Nuance, with certain specified services for a limited time to help ensure an orderly transition following the Distribution.
Employee Matters Agreement: We entered into an Employee Matters Agreement with Nuance that addresses employment and employee
compensation and benefits matters. The Employee Matters Agreement addresses the allocation and treatment of assets and liabilities relating to
employees and compensation and benefit plans and programs in which our employees participated prior to the Spin-Off.
Intellectual Property Agreement: We entered into an Intellectual Property Agreement with Nuance, pursuant to which we granted to Nuance,
and Nuance granted to us, perpetual, non-exclusive, royalty-free licenses to certain patents and technology, as well as certain other intellectual
property that have historically been shared between us and Nuance.
Transitional Trademark License Agreement: We entered into a Transitional Trademark License Agreement with Nuance, pursuant to which
Nuance granted us a non-exclusive, royalty free license to continue using certain of Nuance’s trademarks, trade names and service marks with
respect to the “Nuance” and “Dragon” brands in connection with the sale, marketing and other commercialization of our products and services.
OEM and Distribution License Agreements: We entered into four OEM and Distribution License Agreements with Nuance. Under three of
the four agreements, Cerence licenses to Nuance designated Cerence technologies for Nuance’s internal use and for distribution to Nuance end-
users and resellers. Under the final agreement, Nuance licenses to Cerence designated Nuance technologies for Cerence’s internal use and for
distribution to Cerence end-users and resellers. All agreements contain customary commercial terms for arrangements of this nature.
97
16. Income Taxes
Provision for (benefit from) income taxes
The components of (loss) income before income taxes are as follows (dollars in thousands):
Domestic
Foreign
(Loss) income before income taxes
2022
Year Ended September 30,
2021
2020
$
$
(168,452 ) $
(30,299 )
(198,751 ) $
20,933 $
27,336
48,269 $
(27,889 )
4,849
(23,040 )
The components of provision for (benefit from) income taxes are as follows (dollars in thousands):
Current:
Federal
State
Foreign
Total current
Deferred:
Federal
State
Foreign
Total deferred
Provision for (benefit from) income taxes
Effective income tax rate
2022
Year Ended September 30,
2021
2020
$
$
$
12 $
15
14,761
14,788 $
(6,823 )
218
103,892
97,287
112,075 $
(56.4 )%
— $
35
6,760
6,795 $
5,437
5,001
(14,857 )
(4,419 )
2,376 $
4.9 %
—
—
5,844
5,844
(1,636 )
(239 )
(8,693 )
(10,568 )
(4,724 )
20.5 %
The provision for (benefit from) income taxes differed from the amount computed by applying the federal statutory rate to our income (loss) before
income taxes as follows (dollars in thousands):
Federal tax provision at statutory rate
State tax, net of federal benefit
Foreign tax rate and other foreign related tax items
Uncertain tax positions
Stock-based compensation
Global intangible low-taxed income
Goodwill impairment
Change in valuation allowance
Non-deductible expenditures
R&D credits
Provision for (benefit from) income taxes
2022
Year Ended September 30,
2021
2020
$
$
(41,738 ) $
185
920
25
(15,020 )
(554 )
39,933
128,034
1,095
(805 )
112,075 $
10,137 $
3,979
(15,626 )
861
1,629
554
—
(225 )
3,999
(2,932 )
2,376 $
(4,838 )
(221 )
(2,347 )
(887 )
3,456
336
—
—
2,728
(2,951 )
(4,724 )
The effective income tax rate is based upon the income for the year, the composition of the income in different countries, and adjustments, if any, for
the potential tax consequences, benefits or resolutions of audits or other tax contingencies. Our effective tax rate may be adversely affected by earnings
being lower than anticipated in countries where we have lower statutory tax rates and higher than anticipated in countries where we have higher statutory
tax rates.
Our effective tax rate for the fiscal year 2022 differed from the U.S. federal statutory rate of 21.0%, primarily due to the establishment of a valuation
allowance in a foreign jurisdiction as discussed below, impairment of book goodwill, the tax impacts of stock-based compensation, and our composition of
jurisdictional earnings.
Our effective tax rate for the fiscal year 2021 differed from the U.S. federal statutory rate of 21.0%, primarily due to our composition of
jurisdictional earnings, U.S. inclusions of foreign taxable income as a result of changes in applicable tax laws in 2017, and an income tax benefit of $15.9
million related to an increase in the Netherlands tax rate enacted in the first quarter of fiscal year 2021.
98
The effective tax rate for the fiscal year 2020 differed from the U.S. federal statutory rate of 21.0%, primarily due to our composition of
jurisdictional earnings, R&D incentives, and an income tax benefit of approximately $5.0 million related to an increase in tax rates in the Netherlands
enacted in the first quarter of fiscal year 2020.
As of September 30, 2022, we have not provided taxes on undistributed earnings of our foreign subsidiaries, which may be subject to foreign
withholding taxes upon repatriation, as we consider these earnings indefinitely reinvested. Our indefinite reinvestment determination is based on the future
operational and capital requirements of our domestic and foreign operations. We expect our international cash and cash equivalents and marketable
securities will continue to be used for our foreign operations and therefore do not anticipate repatriating these funds. As of September 30, 2022, it is not
practical to calculate the unrecognized deferred tax liability on these earnings due to the complexities of the utilization of foreign tax credits and other tax
assets.
Deferred tax assets (liabilities) consist of the following as of September 30, 2022 and 2021 (dollars in thousands):
Deferred tax assets:
Net operating loss carryforwards
Capital loss carryforwards
Federal credit carryforwards
Accrued expenses and other reserves
Difference in timing of revenue related items
Acquired intangibles
Interest limitations carryforward
Operating lease liabilities
Depreciation
Deferred compensation
Pension obligation
Other
Total deferred tax assets
Valuation allowance for deferred tax assets
Deferred tax assets
Deferred tax liabilities:
Depreciation
Acquired intangibles
Convertible debt
Operating lease right-of-use assets
Other
Total deferred tax liabilities
Net deferred tax assets
September 30,
2022
2021
44,131
8,187
5,916
3,316
31,261
89,434
10,228
4,874
2,924
1,910
730
3,078
205,989
(126,860 )
79,129
(6,143 )
(14,570 )
(2,463 )
(4,189 )
(749 )
(28,114 )
51,015
$
$
$
$
$
17,098
8,187
5,160
5,992
39,105
102,481
7,319
5,065
2,723
2,174
1,870
1,249
198,423
(12,209 )
186,214
(4,636 )
(17,204 )
(3,349 )
(4,303 )
(163 )
(29,655 )
156,559
$
$
$
$
$
Deferred income taxes arise from temporary difference between the tax and financial statement recognition of revenue and expenses. We regularly
assess the need for a valuation allowance against our deferred tax assets. In evaluating whether it is more likely than not that some or all of our deferred tax
assets will not be realized, we consider all available positive and negative evidence. During the third quarter of fiscal year 2022, we established a valuation
allowance of $107.6 million against our deferred tax assets in the Netherlands, which consists of tax amortizable intellectual property and net operating loss
carryforwards. We determined we had new negative evidence, based on updates to transfer pricing arrangements and changes to the earnings guidance for
fiscal year 2022. We will continue to maintain a valuation allowance against our Netherlands deferred tax assets until we believe it is more likely than not
that these assets will be realized. If sufficient positive evidence arises in the future indicating that all or a portion of the deferred tax assets meet the more
likely than not standard, the valuation allowance would be reversed accordingly in the period that such determination is made.
The remaining deferred tax assets after valuation allowances are primarily domestic. Based on the level of historical taxable income and projections
for future taxable income over the periods for which these deferred tax assets are deductible, we believe that it is more likely than not that we will realize
the benefits of the domestic deductible differences.
As of September 30, 2022, we have $8.2 million and $118.7 million in valuation allowance against our net domestic and foreign deferred tax assets,
respectively. As of September 30, 2021, we had $8.2 million and $4.0 million in valuation allowance against our net domestic and foreign deferred tax
assets, respectively.
As of September 30, 2022, we have U.S. federal net operating loss (“NOL”) carryforwards of $43.6 million, state NOL carryforwards of $11.9
million, and foreign NOL carryforwards of $184.9 million, before uncertain tax positions of $39.5 million. As
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of September 30, 2021, we have U.S. federal NOL carryforwards of $15.0 million, state NOL carryforwards of $4.3 million, and foreign NOL
carryforwards of $99.9 million, before uncertain tax position amounts of $32.8 million. These carryforwards will expire at various dates beginning in 2026
and extending up to an unlimited period. As of September 30, 2022 and 2021, unlimited federal NOLs are $42.8 million and $15.0 million, respectively,
and unlimited Netherlands NOLs are $157.4 million and $70.1 million, respectively.
As of September 30, 2022, we have U.S. federal research and development carryforwards and foreign tax credit carryforwards of $10.1 million,
before uncertain tax positions of $8.1 million, state research and development credits of $0.2 million, and foreign research and development credits of $4.9
million. As of September 30, 2021, we have U.S. federal research and development carryforwards and foreign tax credit carryforwards of $10.8 million,
before uncertain tax positions of $9.1 million, state research and development credits of $0.3 million, and foreign research and development credits of $4.3
million. These carryforwards will expire at various dates beginning in 2023 and extending up to 2041.
Uncertain Tax Positions
ASC 740 prescribes the accounting for uncertainty in income taxes recognized in the financial statements. We regularly assess the outcome of
potential examinations in each of the taxing jurisdictions when determining the adequacy of the amount of unrecognized tax benefit recorded. We recognize
tax benefits from uncertain tax positions only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities,
based on the technical merits of the position. The tax benefits recognized in the financial statements from such positions are then measured based on the
largest benefit which is more likely than not to be realized upon ultimate settlement. We recognize interest and penalties related to unrecognized tax
positions in our provision for (benefit from) income taxes line of our Consolidated Statements of Operations.
The aggregate changes in the balance of our gross unrecognized tax benefits were as follows (dollars in thousands):
Balance at the beginning of the year
Beginning balance adjustment
Increases related to tax positions taken from prior periods
Increases related to tax positions taken during current period
Decreases for tax settlements and lapse in statutes
Balance at the end of the year
100
September 30,
2022
2021
$
$
87,144 $
(13,181 )
2,277
2,088
(1,738 )
76,590 $
67,358
9,884
9,367
768
(233 )
87,144
During fiscal year 2021, we finalized pre-spin tax attributes and recognized as beginning balance adjustments uncertain tax positions of $9.1 million
on certain tax credit carryforwards. As of September 30, 2022 and 2021, beginning balance adjustments include cumulative translation adjustments of
($13.2) million and $0.8 million, respectively.
Increases related to tax positions taken from prior period include the effect of tax rate changes of $2.3 million and $9.4 million at September 30,
2022 and 2021, respectively.
As of September 30, 2022, $76.6 million of the unrecognized tax benefits, if recognized, would impact our effective tax rate. We do not expect a
significant change in the amount of unrecognized tax benefits within the next 12 months. We recognized interest related to uncertain tax positions in our
provision for (benefit from) income taxes of ($0.3) million, $0.3 million and ($0.1) million during fiscal years 2022, 2021 and 2020 respectively. We
recorded interest of $3.5 million and $4.2 million as of September 30, 2022 and 2021, respectively.
We are subject to U.S. federal income tax, various state and local taxes and international income taxes in numerous jurisdictions. The 2016 through
2021 tax years remain open for all purposes of examination by the IRS and other taxing authorities in material jurisdictions.
17. Long-Term Debt
Long-term debt consisted of the following (in thousands):
3.00% Convertible Senior Notes due 2025, net of unamortized discount of $11,264 and $15,019,
respectively, and deferred issuance costs of $2,832 and $3,776, respectively. Effective interest rate
6.29%.
Senior Credit Facilities, net of unamortized discount of $1,310 and $1,829, respectively, and deferred
issuance costs of $158 and $221, respectively. Effective interest rate 5.37% and 2.86%, respectively.
Total debt
Less: current portion
Total long-term debt
September 30, 2022
September 30, 2021
$
$
$
160,904 $
156,205
109,470
270,374 $
(10,938 )
259,436 $
115,138
271,343
(6,250 )
265,093
The following table summarizes the maturities of our borrowing obligations as of September 30, 2022 (in thousands):
Fiscal Year
2023
2024
2025
Total before unamortized discount and issuance costs and current portion
Less: unamortized discount and issuance costs
Less: current portion of long-term debt
Total long-term debt
Convertible
Senior Notes
Senior Facilities
Total
— $
—
175,000
175,000 $
(14,096 )
—
160,904 $
10,938 $
12,500
87,500
110,938 $
(1,468 )
(10,938 )
98,532 $
10,938
12,500
262,500
285,938
(15,564 )
(10,938 )
259,436
$
$
$
3.00% Senior Convertible Notes due 2025
On June 2, 2020, in an effort to refinance our debt structure, we issued $175.0 million in aggregate principal amount of 3.00% Convertible Senior
Notes due 2025 (the “Notes”), including the initial purchasers’ exercise in full of their option to purchase an additional $25.0 million principal amount of
the Notes, between us and U.S. Bank National Association, as trustee (the “Trustee”), in a private offering to qualified institutional buyers pursuant to Rule
144A under the Securities Act of 1933, as amended. The net proceeds from the issuance of the Notes were $169.8 million after deducting transaction costs.
We used net proceeds from the
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issuance of the Notes to repay a portion of our indebtedness under the Credit Agreement, dated October 1, 2019, by and among us, the lenders and issuing
banks party thereto and Barclays Bank PLC, as administrative agent (the “Existing Facility”).
The Notes are senior, unsecured obligations and will accrue interest payable semiannually in arrears on June 1 and December 1 of each year,
beginning on December 1, 2020, at a rate of 3.00% per year. The Notes will mature on June 1, 2025, unless earlier converted, redeemed, or repurchased.
The Notes are convertible into cash, shares of our common stock or a combination of cash and shares of our common stock, at our election. As of
September 30, 2022, the if-converted value of the Notes was $101.3 million less than its principal amount. As of September 30, 2021, the if-converted
value of the Notes exceeded its principal amount by $274.4 million.
A holder of Notes may convert all or any portion of its Notes at its option at any time prior to the close of business on the business day immediately
preceding March 1, 2025 only under the following circumstances: (1) during any fiscal quarter commencing after the fiscal quarter ending on September
30, 2020 (and only during such fiscal quarter), if the last reported sale price of our common stock for at least 20 trading days (whether or not consecutive)
during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding fiscal quarter is greater than or
equal to 130% of the conversion price on each applicable trading day; (2) during the five business day period after any ten consecutive trading day period
(the “measurement period”) in which the “trading price” per $1,000 principal amount of Notes for each trading day of the measurement period was less
than 98% of the product of the last reported sale price of our common stock and the conversion rate on each such trading day; (3) if we call such Notes for
redemption, at any time prior to the close of business on the business day immediately preceding the redemption date; or (4) upon the occurrence of
specified corporate events. On or after March 1, 2025 until the close of business on the second scheduled trading day immediately preceding the maturity
date, a holder may convert all or any portion of its Notes at any time, regardless of the foregoing.
The conversion rate will initially be 26.7271 shares of our common stock per $1,000 principal amount of Notes (equivalent to an initial conversion
price of approximately $37.42 per share of our common stock). The conversion rate is subject to adjustment in some events but will not be adjusted for any
accrued and unpaid interest. In addition, following certain corporate events that occur prior to the maturity date or if we deliver a notice of redemption, we
will, in certain circumstances, increase the conversion rate for a holder who elects to convert its Notes in connection with such a corporate event or convert
its Notes called for redemption in connection with such notice of redemption, as the case may be.
We may not redeem the Notes prior to June 5, 2023. We may redeem for cash all or any portion of the Notes, at our option, on a redemption date
occurring on or after June 5, 2023 and on or before the 31st scheduled trading day immediately before the maturity date, if the last reported sale price of our
common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive), including the trading
day immediately preceding the date on which we provide notice of redemption, during any 30 consecutive trading day period ending on, and including, the
trading day immediately preceding the date on which we provide notice of redemption at a redemption price equal to 100% of the principal amount of the
notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date. No sinking fund is provided for the Notes.
If we undergo a “fundamental change”, subject to certain conditions, holders may require us to repurchase for cash all or any portion of their Notes
at a fundamental change repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid interest to,
but excluding, the fundamental change repurchase date.
The indenture governing the Notes contains customary terms and covenants, including that upon certain events of default occurring and continuing,
either the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding may declare the entire principal amount
of all the Notes plus accrued special interest, if any, to be immediately due and payable.
At issuance, we accounted for the Notes by allocating proceeds from the Notes into debt and equity components according to the accounting
standards for convertible debt instruments that may be fully or partially settled in cash upon conversion. The initial carrying amount of the debt component,
which approximates its fair value, was estimated by using an interest rate for nonconvertible debt, with terms similar to the Notes. The excess of the
principal amount of the Notes over the fair value of the debt component was recorded as a debt discount and a corresponding increase in additional paid-in
capital. The debt discount is accreted to the carrying value of the Notes over their expected term as interest expense using the interest method. Upon
issuance of the Notes, we recorded $155.3 million as debt and $19.7 million as additional paid-in capital in stockholders’ equity. As of September 30, 2022
and 2021, the carrying amount of the equity component, net of taxes and transaction costs was $14.4 million.
We incurred transaction costs of $5.6 million relating to the issuance of the Notes. In accounting for these costs, we allocated the costs of the
offering between debt and equity in proportion to the fair value of the debt and equity recognized. The transaction costs allocated to the debt component of
approximately $5.0 million were recorded as a direct deduction from the face amount of the
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Notes and are being amortized as interest expense over the term of the Notes using the interest method. The transaction costs allocated to the equity
component of approximately $0.6 million were recorded as a decrease in additional paid-in capital.
The interest expense recognized related to the Notes for the fiscal years ended September 30, 2022, 2021 and 2020 was as follows (dollars in
thousands):
Contractual interest expense
Amortization of debt discount
Amortization of issuance costs
Total interest expense related to the Notes
$
$
2022
5,246
3,755
944
9,945
$
$
Year Ended
September 30,
2021
5,246 $
3,527
887
9,660 $
2020
1,753
1,131
285
3,169
The conditional conversion feature of the Notes was triggered during the fiscal year ended September 30, 2022, and the Notes were not convertible
as of September 30, 2022, with no Notes being converted. Whether any of the Notes will be converted in future quarters will depend on the satisfaction of
one or more of the conversion conditions in the future. If one or more holders elect to convert their Notes at a time when any such Notes are convertible,
unless we elect to satisfy our conversion obligation by delivering solely shares of our common stock (other than paying cash in lieu of delivering any
fractional shares), we would be required to settle a portion or all of our conversion obligation through the payment of cash, which could adversely affect our
liquidity.
Senior Credit Facilities
On June 12, 2020 (the “Financing Closing Date”), in connection with our effort to refinance our existing indebtedness, we entered into a Credit
Agreement, by and among the Borrower, the lenders and issuing banks party thereto and Wells Fargo Bank, N.A., as administrative agent (the “Credit
Agreement”), consisting of a four-year senior secured term loan facility in the aggregate principal amount of $125.0 million (the “Term Loan Facility”).
The net proceeds from the issuance of the Term Loan Facility were $123.0 million, which together with proceeds from the Notes was intended to pay in full
all indebtedness under the Existing Facility, and paid fees and expenses in connection with the Senior Credit Facilities. We also entered into a senior
secured first-lien revolving credit facility in an aggregate principal amount of $50.0 million (the “Revolving Facility” and, together with the Term Loan
Facility, the “Senior Credit Facilities”), which shall be drawn on in the event that our working capital and other cash needs are not supported by our
operating cash flow. As of September 30, 2022 and 2021, there were no amounts outstanding under the Revolving Facility.
Our obligations under the Credit Agreement are jointly and severally guaranteed by certain of our existing and future direct and indirect wholly
owned domestic subsidiaries, subject to certain exceptions customary for financings of this type. All obligations are secured by substantially all of our
tangible and intangible personal property and material real property, including a perfected first-priority pledge of all (or, in the case of foreign subsidiaries
or subsidiaries (“FSHCO”) that own no material assets other than equity interests in foreign subsidiaries that are “controlled foreign corporations” or other
FSHCOs, 65%) of the equity securities of our subsidiaries held by any loan party, subject to certain customary exceptions and limitations.
On December 17, 2020 (the “Amendment No. 1 Effective Date”), we entered into Amendment No. 1 to the Credit Agreement (the “Amendment”).
The Amendment extended the scheduled maturity date of the revolving credit and term facilities from June 12, 2024 to April 1, 2025.
The Amendment revised certain interest rates in the Credit Agreement. Following delivery of a compliance certificate for the first full fiscal quarter
after the Amendment No. 1 Effective Date, the applicable margins for the revolving credit and term facilities is subject to a pricing grid based upon the net
total leverage ratio as follows (i) if the net total leverage ratio is greater than 3.00 to 1.00, the applicable margin is LIBOR plus 3.00% or ABR plus 2.00%;
(ii) if the net total leverage ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, the applicable margin is LIBOR plus 2.75% or ABR plus
1.75%; (iii) if the net total leverage ratio is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, the applicable margin is LIBOR plus 2.50% or
ABR plus 1.50%; (iv) if the net total leverage ratio is less than or equal to 2.00 to 1.00 but greater than 1.50 to 1.00, the applicable margin is LIBOR plus
2.25% or ABR plus 1.25%; and (v) if the net total leverage ratio is less than or equal to 1.50 to 1.00, the applicable margin is LIBOR plus 2.20% or ABR
plus 1.00%. As a result of the Amendment, the applicable LIBOR floor was reduced from 0.50% to 0.00%.
From the Amendment No. 1 Effective Date until the fiscal quarter ended December 31, 2020, the interest rate was LIBOR plus 2.50%. For the three
months ended March 31, 2021, the interest rate was LIBOR plus 2.25%. For the three months ended June 30, 2021, the interest rate was LIBOR plus
2.25%. For the three months ended September 30, 2021, the interest rate was LIBOR plus 2.25%. For the three and twelve months ended September 30,
2022, the interest rate was LIBOR plus 2.25%. Total interest expense relating to the Senior Credit Facilities for the fiscal year ended September 30, 2022,
2021 and 2020 was $4.3 million, $4.1 million, $1.5 million, respectively, reflecting the coupon and accretion of the discount.
In addition, the quarterly commitment fee required to be paid based on the unused portion of the Revolving Facility is subject to a pricing grid based
upon the net total leverage ratio as follows (i) if the net total leverage ratio is greater than 3.00 to 1.00, the unused
103
line fee is 0.500%; (ii) if the net total leverage ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, the unused line fee is 0.450%; (iii) if
the net total leverage ratio is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, the unused line fee is 0.400%; (iv) if the net total leverage ratio
is less than or equal to 2.00 to 1.00 but greater than 1.50 to 1.00, the unused line fee is 0.350%; and (v) if the net total leverage ratio is less than or equal to
1.50 to 1.00, the unused line fee is 0.300%.
The Amendment revised the amount by which we are obligated to make quarterly principal payments. Through the fiscal quarter ending December
31, 2022, we are obligated to make quarterly principal payments in an aggregate amount equal to 1.25% of the original principal amount of the Term Loan
Facility. From the fiscal quarter ending March 31, 2023 and for each fiscal quarter thereafter, we are obligated to make quarterly principal payments in an
aggregate amount equal to 2.50% of the original principal amount of the Term Loan Facility, with the balance payable at the maturity date thereof.
Borrowings under the Credit Agreement are prepayable at our option without premium or penalty. We may request, and each lender may agree in its
sole discretion, to extend the maturity date of all or a portion of the Senior Credit Facilities subject to certain conditions customary for financings of this
type. The Credit Agreement also contains certain mandatory prepayment provisions in the event that we incur certain types of indebtedness or receives net
cash proceeds from certain non-ordinary course asset sales or other dispositions of property, in each case subject to terms and conditions customary for
financings of this type.
The Credit Agreement contains certain affirmative and negative covenants customary for financings of this type that, among other things, limit our
and our subsidiaries’ ability to incur additional indebtedness or liens, to dispose of assets, to make certain fundamental changes, to designate subsidiaries as
unrestricted, to make certain investments, to prepay certain indebtedness and to pay dividends, or to make other distributions or redemptions/repurchases, in
respect of our and our subsidiaries’ equity interests. In addition, the Credit Agreement contains financial covenants, each tested quarterly, (1) a net secured
leveraged ratio of not greater than 3.25 to 1.00; (2) a net total leverage ratio of not greater than 4.25 to 1.00; and (3) minimum liquidity of at least $75
million. The Credit Agreement also contains events of default customary for financings of this type, including certain customary change of control events.
As of September 30, 2022 and 2021, we were in compliance with all Credit Agreement covenants.
On November 22, 2022 (the "Amendment No. 2 Effective Date"), we entered into Amendment No. 2 to the Credit Agreement ("Amendment No.
2"). Amendment No. 2 modified certain financial covenants between the fiscal quarter ended March 31, 2023 to the fiscal quarter ended December 31,
2023 (the "covenant adjustment period"). During the covenant adjustment period, each tested quarterly, we are required to maintain (1) a net secured
leveraged ratio of not greater than 4.25 to 1.00; (2) minimum liquidity of at least $125 million; and (3) aggregate capital expenditures less than $7.5
million. The net total leverage ratio will be waived during the covenant adjustment period. At the conclusion of the covenant adjustment period, the original
financial covenants will resume.
Amendment No. 2 revised certain interest rates in the Credit Agreement. The applicable margins for the revolving credit and term facilities is subject
to a pricing grid based upon the net total leverage ratio as follows (i) if the net total leverage ratio is greater than 3.00 to 1.00, the applicable margin is
SOFR plus 3.00% or ABR plus 2.00%; (ii) if the net total leverage ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, the applicable
margin is SOFR plus 2.75% or ABR plus 1.75%; (iii) if the net total leverage ratio is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, the
applicable margin is SOFR plus 2.50% or ABR plus 1.50%; (iv) if the net total leverage ratio is less than or equal to 2.00 to 1.00 but greater than 1.50 to
1.00, the applicable margin is SOFR plus 2.25% or ABR plus 1.25%; and (v) if the net total leverage ratio is less than or equal to 1.50 to 1.00, the
applicable margin is SOFR plus 2.20% or ABR plus 1.00%. From the Amendment No. 2 Effective Date until delivery of the first compliance certificate
after the covenant adjustment period, the applicable margin will be SOFR plus 3.00% or ABR plus 2.00%.
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Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
Not Applicable.
Item 9A. Controls and Procedures.
Evaluation of disclosure controls and procedures. Based on the evaluation of our disclosure controls and procedures (as defined in Rules 13a-15(e)
and 15d-15(e) under the Exchange Act required by Exchange Act Rules 13a-15(b) or 15d-15(b), our principal executive officer (our Chief Executive
Officer) and principal financial officer (our Chief Financial Officer) have concluded that as of the end of the period covered by this report, our disclosure
controls and procedures were effective to ensure that information required to be disclosed by Cerence in reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and include controls and procedures
designed to ensure that information required to be disclosed by us in such reports is accumulated and communicated to our management, including the
principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
Management report on internal control over financial reporting. Management is responsible for establishing and maintaining adequate internal
control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. Our internal control over financial reporting is
designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external reporting
purposes in accordance with generally accepted accounting principles and include those policies and procedures that:
•
•
•
Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and disposals of the assets of the
Company;
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with
generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company; and
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets
that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect all misstatements and all fraud. Therefore,
even those systems determined to be effective can provide only reasonable, not absolute, assurance with respect to financial statement preparation and
presentation. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes
in conditions and that the degree of compliance with the policies or procedures may deteriorate.
Management, under the supervision of the Chief Executive Officer and Chief Financial Officer, has assessed the effectiveness of our internal control
over financial reporting as of September 30, 2022, utilizing the criteria set forth by the Committee of Sponsoring Organizations of the Treadway
Commission (“COSO”) in the 2013 Internal Control-Integrated Framework. Based on the results of this assessment, management (including our Chief
Executive Officer and our Chief Financial Officer) has concluded that, as of September 30, 2022, our internal control over financial reporting was effective
based on those criteria.
The attestation report concerning the effectiveness of our internal control over financial reporting as of September 30, 2022 issued by BDO USA,
LLP, an independent registered public accounting firm, appears in Item 8 of this Annual Report on Form 10-K.
Changes in internal control over financial reporting. There were no material changes in our internal control over financial reporting during the three
months ended September 30, 2022 that have materially affected, or are reasonability likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information.
On the Amendment No. 2 Effective Date, we entered into Amendment No. 2 to the Credit Agreement. Amendment No. 2 modified certain financial
covenants during the covenant adjustment period. During the covenant adjustment period, each tested quarterly, we are required to maintain (1) a net
secured leveraged ratio of not greater than 4.25 to 1.00; (2) minimum liquidity of at least $125 million; and (3) aggregate capital expenditures less than $7.5
million. The net total leverage ratio will be waived during the covenant adjustment period. At the conclusion of the covenant adjustment period, the original
financial covenants will resume.
Amendment No. 2 revised certain interest rates in the Credit Agreement. The applicable margins for the revolving credit and term facilities is subject
to a pricing grid based upon the net total leverage ratio as follows (i) if the net total leverage ratio is greater than 3.00 to 1.00, the applicable margin is
SOFR plus 3.00% or ABR plus 2.00%; (ii) if the net total leverage ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, the applicable
margin is SOFR plus 2.75% or ABR plus 1.75%; (iii) if the net total leverage ratio is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, the
applicable margin is SOFR plus 2.50% or ABR plus 1.50%; (iv) if the net total leverage ratio is less than or equal to 2.00 to 1.00 but greater than 1.50 to
1.00, the applicable margin is
105
SOFR plus 2.25% or ABR plus 1.25%; and (v) if the net total leverage ratio is less than or equal to 1.50 to 1.00, the applicable margin is SOFR plus 2.20%
or ABR plus 1.00%. From the Amendment No. 2 Effective Date until delivery of the first compliance certificate after the covenant adjustment period, the
applicable margin will be SOFR plus 3.00% or ABR plus 2.00%.
The above description of Amendment No. 2 does not purport to be complete and is qualified in its entirety by reference to the full text of
Amendment No. 2, a copy of which is filed as Exhibit 10.31 hereto and is incorporated by reference herein.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.
Not Applicable.
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Item 10. Directors, Executive Officers and Corporate Governance.
PART III
Our Board of Directors adopted a Code of Business Conduct and Ethics for all of our directors, officers and employees on October 2, 2019. Our
Code of Business Conduct and Ethics can be found at our website: www.cerence.com. We will provide to any person without charge, upon request, a copy
of our Code of Business Conduct and Ethics. Such a request should be made in writing and addressed to Investor Relations, Cerence Inc., 1 Burlington
Woods Drive, Suite 301A, Burlington, MA 01803.
To date, there have been no waivers under our Code of Business Conduct and Ethics. We will post any waivers, if and when granted, of our Code of
Business Conduct and Ethics on our website at www.cerence.com.
The additional information required by this Item for the Company will be set forth in the Company’s Proxy Statement for the 2023 Annual Meeting
of Stockholders, which information is hereby incorporated by reference.
Item 11. Executive Compensation.
The information required by this Item for the Company will be set forth in the Company’s Proxy Statement for the 2023 Annual Meeting of
Stockholders, which information is hereby incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information required by this Item for the Company will be set forth in Company’s Proxy Statement for the 2023 Annual Meeting of
Stockholders, which information is hereby incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information required by this Item for the Company will be set forth in the Company’s Proxy Statement for the 2023 Annual Meeting of
Stockholders, which information is hereby incorporated herein by reference.
Item 14. Principal Accounting Fees and Services.
The information required by this Item for the Company will be set forth in Company’s Proxy Statement for the 2023 Annual Meeting of
Stockholders, which information is hereby incorporated herein by reference.
107
Item 15. Exhibits, Financial Statement Schedules.
(a) The following documents are filed as a part of this Report:
(1) All Financial Statements— See Index to Financial Statements in Item 8 of this Report;
PART IV
(2) Financial Statement Schedules — All schedules have been omitted as the requested information is inapplicable or the information is presented in
the financial statements or related notes included as part of this Report.
(3) Exhibits — See Item 15(b) of this Report below.
(b) Exhibits.
EXHIBIT INDEX
108
Amended and Restated By-Laws of Cerence Inc.
8-K
001-39030
Incorporated by Reference
Filed
Herewith
Form
File
No.
Exhibit
8-K
001-39030
8-K
001-39030
Filing Date
October 2,
2019
October 2,
2019
October 2,
2019
2.1
3.1
3.2
8-K
001-39030
4.1
June 2, 2020
Exhibit
Index #
2.1
3.1
3.2
4.1
4.2
4.3
10.1
10.2
10.3
10.4
10.5
Exhibit Description
Separation and Distribution Agreement between Nuance
Communications, Inc. and Cerence Inc.
Amended and Restated Certificate of Incorporation of
Cerence Inc.
Indenture, dated as of June 2, 2020, between Cerence Inc. and
U.S. Bank, National Association, as Trustee.
Form of Global Note, representing Cerence Inc.’s 3.00%
Convertible Senior Notes due 2025 (included as Exhibit A to
the Indenture filed as Exhibit 4.1).
Description of Registrant's Securities
Tax Matters Agreement between Nuance Communications,
Inc. and Cerence Inc.
Transition Services Agreement between Nuance
Communications, Inc. and Cerence Operating Company
Employee Matters Agreement between Nuance
Communications, Inc. and Cerence Inc.
Intellectual Property Agreement between Nuance
Communications, Inc. and Cerence Inc.
Transitional Trademark License Agreement between Nuance
Communications, Inc. and Cerence Inc.
10.6†
Offer Letter of Sanjay Dhawan, dated February 14, 2019
10.7†
10.8†
Change of Control and Severance Agreement between Sanjay
Dhawan and Nuance Communications, Inc.
Amendment to Offer Letter of Sanjay Dhawan, dated August
26, 2019
10.9†
Cerence 2019 Equity Incentive Plan
10.10†
Cerence 2019 Employee Stock Purchase Plan
8-K
001-39030
10-K
001-39030
4.1
4.3
8-K
001-39030
10.1
8-K
001-39030
10.2
8-K
001-39030
10.3
8-K
001-39030
10.4
8-K
001-39030
10.5
10
10
001-39030
10.6
001-39030
10.7
10/A
001-39030
10.8
S-8
S-8
333-234040
333-234040
4.3
4.6
June 2, 2020
November
19, 2020
October 2,
2019
October 2,
2019
October 2,
2019
October 2,
2019
October 2,
2019
August 21,
2019
August 21,
2019
September 4,
2019
October 2,
2019
October 2,
2019
December
19, 2020
December
19, 2020
November
19, 2020
November
19, 2020
June 17,
2020
June 17,
2020
10.11†
Form of Change of Control and Severance Agreement - NEO
10-K
001-39030
10.14
10.12
Indemnification Agreement
10-K
001-39030
10.15
10.13†
Restricted Stock Unit Award Agreement
10-K
001-39030
10.13
10.14†
Performance-Based Restricted Stock Unit Award Agreement
10-K
001-39030
10.14
Credit Agreement, dated June 12, 2020, by and between
Cerence Inc., the lenders and issuing banks party thereto and
Wells Fargo Bank, N.A., as administrative agent.
Subsidiary Guarantee Agreement, dated June 12, 2020, by
and between certain domestic subsidiaries of Cerence, as
subsidiary guarantors, and Wells Fargo Bank, N.A., as
administrative agent.
10.15
10.16
109
8-K
001-39030
10.1
8-K
001-39030
10.2
Collateral Agreement, dated June 12, 2020, by and between
Cerence Inc. and certain subsidiaries of Cerence, as pledgors,
and Wells Fargo Bank, N.A., as collateral agent.
10.17
8-K
001-39030
10.3
10.18†
Amendment No. 1 to Cerence 2019 Equity Incentive Plan
10-K
001-39030
10.18
Amendment No. 1, dated as of December 17, 2020, by and
among Cerence Inc., the lenders and issuing banks party
thereto and Wells Fargo Bank, N.A., as administrative agent
10.19
8-K
001-39030
10.1
10.20†
CEO Change of Control and Severance Agreement
10-Q
001-39030
10.2
10.21†
10.22†
Offer Letter, dated December 14, 2021, by and between
Cerence Inc. and Stefan Ortmanns
Separation Agreement, dated December 14, 2021, by and
between Cerence Inc. and Sanjay Dhawan
8-K
001-39030
10.1
10-Q
001-39030
10.2
10.23†
Offer Letter, dated March 11, 2022, by and between Cerence
Inc. and Marc Montagner
10-Q
001-39030
10.1
Change of Control and Severance Agreement, effective as of
April 4, 2022, by and between Cerence Inc. and Marc
Montagner
10.24†
10-Q
001-39030
10.2
10-Q
001-39030
10.3
10-Q
001-39030
10.4
10-Q
001-39030
10.1
10-Q
001-39030
10.2
8-K
001-39030
10.1
8-K
001-39030
10.2
Transitional Services and Retirement Agreement, dated
February 4, 2022, by and between Cerence Inc. and Mark
Gallenberger
Transitional Services Agreement, dated February 2, 2022, by
and between Cerence Inc. and Leanne Fitzgerald
Offer Letter, dated May 4, 2022, by and between Cerence Inc.
and Thomas Beaudoin
Change of Control and Severance Agreement, effective as of
May 5, 2022, by and between Cerence Inc. and Thomas
Beaudoin
Change of Control Equity Acceleration Agreement, effective
as of June 19, 2022, by and between Cerence Inc. and Stefan
Ortmanns
Change of Control and Severance Agreement, effective as of
June 21, 2022, by and between Cerence GmbH and Stefan
Ortmanns
Amendment No. 2 to Credit Agreement, dated as of June 12,
2020, by and among Cerence Inc., the lenders and issuing
banks party thereto and Wells Fargo Bank, N.A., as
administrative agent
Subsidiaries of the Registrant
Consent of BDO USA, LLP, Independent Registered Public
Accounting Firm.
10.25†
10.26†
10.27†
10.28†
10.29†
10.30†
10.31
21.1
23.1
24.1
Power of Attorney (including in signature pages hereto)
Certification of Principal Executive Officer Pursuant to Rules
13a-14(a) and 15d-14(a) under the Securities Exchange Act
of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002.
31.1
110
X
X
X
X
X
June 17,
2020
November
19, 2020
December
21, 2020
February 8,
2021
December
15, 2021
February 8,
2022
May 10,
2022
May 10,
2022
May 10,
2022
May 10,
2022
August 9,
2022
August 9,
2022
June 24,
2022
June 24,
2022
31.2
32.1*
Certification of Principal Financial Officer Pursuant to Rules
13a-14(a) and 15d-14(a) under the Securities Exchange Act
of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002.
Certification of Principal Executive Officer Pursuant to 18
U.S.C. Section 1350, as Adopted Pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
Certification of Principal Financial Officer Pursuant to 18
U.S.C. Section 1350, as Adopted Pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
Inline XBRL Instance Document
32.2*
101.INS
101.SCH Inline XBRL Taxonomy Extension Schema Document.
101.CAL
101.DEF
101.LAB
101.PRE
104
Inline XBRL Taxonomy Extension Calculation Linkbase
Document.
Inline XBRL Taxonomy Extension Definition Linkbase
Document.
Inline XBRL Taxonomy Extension Label Linkbase
Document.
Inline XBRL Taxonomy Extension Presentation Linkbase
Document.
Cover Page Interactive Data File (formatted as Inline XBRL
with applicable taxonomy extension information contained in
Exhibits 101.*)
† Management contract or compensatory plan or arrangement
* Furnished herewith.
Item 16. Form 10-K Summary
None.
111
X
X
X
X
X
X
X
X
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Report
to be signed on its behalf by the undersigned, thereunto duly authorized.
SIGNATURES
Date: November 29, 2022
CERENCE INC.
By:
/s/ Stefan Ortmanns
Stefan Ortmanns
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints each of Stefan
Ortmanns and Thomas L. Beaudoin, acting singly, his true and lawful agent, proxy and attorneys-in-fact, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Annual Report on Form 10-K and
to file the same with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as he might or could do in person, and hereby ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Name
/s/ Stefan Ortmanns
Stefan Ortmanns
/s/ Thomas L. Beaudoin
Thomas L. Beaudoin
/s/ Arun Sarin
Arun Sarin
/s/ Marianne Budnik
Marianne Budnik
/s/ Sanjay Jha
Sanjay Jha
/s/ Kristi Ann Matus
Kristi Ann Matus
/s/ Alfred Nietzel
Alfred Nietzel
/s/ Doug Davis
Dong Davis
Title
Chief Executive Officer and Director
(Principal Executive Officer)
Chief Financial Officer and Director
(Principal Financial Officer and Principal Accounting Officer)
Date
November 29, 2022
November 29, 2022
Chairman of the Board
November 29, 2022
Director
Director
Director
Director
Director
112
November 29, 2022
November 29, 2022
November 29, 2022
November 29, 2022
November 29, 2022
AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit 10.31
AMENDMENT NO. 2, dated as of November 22, 2022 (this “Amendment”), to the Credit Agreement, dated as of June
12, 2020 (as amended by Amendment No. 1 to Credit Agreement, dated as of December 17, 2020, and as further amended, restated,
supplemented or otherwise modified through the date hereof, the “Credit Agreement”), among Cerence Inc., a Delaware corporation (the
“Borrower”), the lenders from time to time party thereto (the “Lenders”), Wells Fargo Bank, N.A., as Administrative Agent (the
“Administrative Agent”), and the other parties named therein.
W I T N E S S E T H:
Administrative Agent desire to amend the Credit Agreement as set forth in Article II below on the terms set forth herein;
WHEREAS, pursuant to Section 9.08(b) of the Credit Agreement, the Borrower, the Lenders party hereto and the
WHEREAS, certain Loans under the Credit Agreement or other Loan Documents bear or are permitted to bear interest, or
incur or are permitted to incur fees, commissions or other amounts, based on the US LIBO Rate in accordance with the terms of the Credit
Agreement or the other Loan Documents;
WHEREAS, an Early Opt-in Election (as defined in the Credit Agreement prior to giving effect to this Amendment) has
occurred with respect to the US LIBO Rate and the applicable parties thereunder have determined in accordance with the Credit Agreement
and any other applicable Loan Document that the US LIBO Rate should be replaced with Adjusted Term SOFR as an alternative benchmark
rate for purposes of the Credit Agreement and the other Loan Documents for settings of benchmark rates that occur on or after the
Amendment No. 2 Effective Date (as defined below) pursuant to a benchmark replacement amendment in accordance with the benchmark
replacement provisions set forth in any applicable Loan Document, and pursuant thereto the Administrative Agent is exercising its right to
make certain benchmark replacement conforming changes in connection with the implementation of the applicable benchmark replacement
as set forth herein;
(including, prior to giving effect to this Amendment, Section 2.14(d) thereof); and
WHEREAS, this Amendment constitutes notice of an Early Opt-in Election as required pursuant to the Credit Agreement
Conforming Changes (as defined in the Credit Agreement) for purposes of the Credit Agreement and the other Loan Documents.
WHEREAS, the amendments and modifications set forth in this Amendment constitute Benchmark Replacement
NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree
as follows:
-1-
ARTICLE I
Definitions
to them in the Credit Agreement (as amended hereby) unless otherwise defined herein or the context otherwise requires.
Section 1.1.
Defined Terms. Terms defined in the Credit Agreement and used herein shall have the meanings given
ARTICLE II
Amendment
Section 2.1.
Amendments. Notwithstanding anything to the contrary contained in the Credit Agreement or in any
other Loan Document, effective as of the Amendment No. 2 Effective Date (as defined below), (a) the Credit Agreement is hereby amended
to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined
text (indicated textually in the same manner as the following example: double-underlined text) as set forth on Exhibit A hereto (the
“Amended Credit Agreement”) and (b) Exhibit D to the Credit Agreement is hereby amended as set forth in Exhibit A-D hereto and shall be
Exhibit D to the Amended Credit Agreement. For the avoidance of doubt, this Amendment shall become effective on the Amendment No. 2
Effective Date.
ARTICLE III
Conditions and Miscellaneous
“Amendment No. 2 Effective Date”) on which the following conditions are satisfied or waived by the Lenders and the Issuing Banks:
Section 3.1.
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the
(a)
The Administrative Agent (or its counsel) shall have received from each of the Borrower, the
Subsidiary Loan Parties and the Lenders party hereto (which shall constitute the Required Lenders of each Class) (i) a counterpart of this
Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include
delivery of a signed signature page of this Amendment by electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of
this Amendment.
(b)
The Administrative Agent shall have received, to the extent invoiced at least one Business Day prior to
the Amendment No. 2 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including
reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP) required to be reimbursed or paid by the Loan Parties hereunder
or under any Loan Document on or prior to the Amendment No. 2 Effective Date.
(c)
The Company shall have paid to the Administrative Agent, for the account of each Lender that
provides its consent to this Amendment (each, a “Consenting Lender”), an amendment fee in Dollars equal to the sum of (x) 0.10% of the
aggregate principal amount of the Term Loans outstanding held by each such Consenting Lender on the Amendment No. 2 Effective Date
and (y) 0.10% of the aggregate principal amount of the Revolving Facility Commitments of each such Consenting Lender on the
Amendment No. 2 Effective Date. Such fee shall be payable on, and subject to the occurrence of, the Amendment No. 2 Effective Date.
-2-
Amendment No. 2 Effective Date.
(d)
The representations and warranties set forth in Section 3.2 hereof shall be true and correct as of the
On or prior to the Amendment No. 2 Effective Date, any Loan Party that qualifies as a “legal entity
customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests at least five Business Days prior
to the Amendment No. 2 Effective Date, a Beneficial Ownership Certification in relation to such Loan Party.
(e)
hereto that:
Section 3.2.
Representation and Warranties. Each Loan Party represents and warrants to each of the Lenders party
(a)
the execution, delivery and performance by each Loan Party of this Amendment (i) have been duly
authorized by all corporate action required to be obtained by each Loan Party and (ii) will not (A) violate (1)(x) any provision of law, statute,
rule or regulation applicable to such Loan Party or (y) the certificate or articles of incorporation or other constitutive documents or by-laws of
the Borrower, (2) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (3) any provision of
any indenture, certificate of designation for preferred stock, agreement or other instrument to which the applicable Loan Party is a party or by
which any of them or any of their property is or may be bound or (B) result in a breach of or constitute (alone or with notice or lapse of time
or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment)
under any such indenture, certificate of designation for preferred stock, agreement or other instrument, where any such conflict, violation,
breach or default referred to in clause (A) or clause (B) of this Section 3.2(a), would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(b)
this Amendment has been duly executed and delivered by each of the Loan Parties and constitutes, a
legal, valid and binding obligation of the Loan Parties, enforceable in accordance with its terms, subject to (i) the effects of bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and (iii) implied covenants
of good faith and fair dealing;
(c)
the representations and warranties of the Loan Parties set forth in the Loan Documents are true and
correct in all material respects on and as of such date with the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in
all material respects as of such earlier date) and except that the representations and warranties contained in Sections 3.05(a) and (b) of the
Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 5.04(a) and (b) of the Credit
Agreement, respectively, prior to the Amendment No. 2 Effective Date; and
(d)
as of the Amendment No. 2 Effective Date, the information included in the Beneficial Ownership
Certification, if applicable, is true and correct in all respects.
Section 3.3.
Notice.
(a)
To the extent that the Administrative Agent is required (pursuant to the Credit Agreement, any Loan
Document or otherwise) to provide notice to the Borrower, any Lender or any other party to the Credit Agreement of (i) an Early Opt-in
Election with respect to the US LIBO Rate, (ii) a benchmark replacement date (or other analogous or similar date), (iii) the implementation
of Adjusted Term SOFR as a benchmark replacement (or other analogous or similar term) or (iv) any benchmark
-3-
replacement conforming changes (or other similar conforming changes) in connection with the adoption and implementation of Adjusted
Term SOFR or the use and administration thereof, this Amendment shall constitute such notice. Pursuant to clause (b) of the definition of
“Benchmark Transition Start Date” in the Credit Agreement, the “Benchmark Transition Start Date” shall be the date of this Amendment
and this Amendment shall constitute the notice specified in such clause (b) to the Borrower, the Administrative Agent and the Lenders of
the occurrence of such Benchmark Transition Start Date.
(b)
Notwithstanding anything herein to the contrary, if on the Amendment No. 2 Effective Date there is
any outstanding advance under the Credit Agreement that is bearing interest at a rate determined in relation to the US LIBO Rate for any
Interest Period (as those terms are defined in the Credit Agreement) then such outstanding US LIBO Rate advance shall continue to bear
interest at such US LIBO Rate based rate in accordance with the terms of the Credit Agreement until the end of its Interest Period (such US
LIBO Rate advance shall continue to be subject to the Benchmark Replacement provisions in effect prior to the effectiveness of this
Amendment). After the end of its Interest Period, such outstanding advance that had been bearing interest at a fixed rate determined in
relation to the US LIBO Rate shall bear interest in accordance with the interest rate provisions of the Credit Agreement as amended by this
Amendment.
Section 3.4.
Consent and Affirmation of Subsidiary Loan Parties. Each Subsidiary Loan Party, in its capacity as a
guarantor under the Collateral Agreement and a pledgor under the other Security Documents to which such Subsidiary Loan Party is party,
hereby (i) consents to the execution, delivery and performance of this Amendment and agrees that each of the Collateral Agreement and the
other Security Documents to which such Subsidiary Loan Party is party is, and shall continue to be, in full force and effect and is hereby in
all respects ratified and confirmed on the Amendment No. 2 Effective Date and (ii) confirms that the Security Documents to which such
Subsidiary Loan Party is a party and all of the Collateral described therein do, and shall continue to, secure the payment of all of the
Obligations.
Loan Document. This Amendment is a Loan Document executed pursuant to the Credit Agreement and
shall (unless otherwise expressly indicated herein) be construed, administered and applied in accordance with the terms and provisions
thereof.
Section 3.5.
Section 3.6.
Effectiveness; Counterparts; Amendments. This Amendment shall become effective when copies
hereof that, when taken together, bear the signatures of the Loan Parties and the Required Lenders of each Class shall have been received by
the Administrative Agent. This Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing
signed by the Borrower, the Administrative Agent and the Required Lenders of each Class. This Amendment may be executed in two or
more 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 of a signature page of this Amendment by telecopy or electronic transmission shall be effective as delivery of a
manually executed counterpart of this Amendment. The words “execution,” “signed,” and words of like import in this Amendment shall be
deemed to include electronic signatures or electronic records, 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.
Loan Document. This Amendment shall not extinguish the Obligations
Section 3.7.
No Novation. This Amendment shall not constitute a novation of the Credit Agreement or any other
-4-
outstanding under the Credit Agreement or discharge or release the Lien or priority of any Security Document or any other security therefor.
Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Credit Agreement, which
shall remain outstanding after the Amendment No. 2 Effective Date as modified hereby except to the extent repaid as contemplated hereby.
Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or
otherwise affect the rights and remedies of the Lenders, the Issuing Banks or any other Agent, in each case under the Credit Agreement or
any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document. Nothing implied in this Amendment or in any other document
contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties under any Loan Document from any of its
obligations and liabilities as a borrower, guarantor or pledgor under any of the Loan Documents. Each and every term, condition, obligation,
covenant and agreement contained in the Credit Agreement (as amended hereby) and each other Loan Document is hereby ratified and re-
affirmed in all respects and shall continue in full force and effect. Each of the Loan Parties reaffirms the validity of the Liens granted by it
pursuant to the Security Documents with all such Liens continuing in full force and effect to secure the Obligations after giving to this
Amendment.
Credit Agreement.
Section 3.8.
Notices. All notices hereunder shall be given in accordance with the provisions of Section 9.01 of the
Section 3.9.
THIS AMENDMENT AND ANY CLAIM,
CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON,
ARISING OUT OF OR RELATING TO THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT
COULD REQUIRE THE APPLICATION OF ANY OTHER LAW.
Applicable Law; Waiver of Jury Trial.
(A)
AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE AND APPLY MUTATIS MUTANDIS.
(B) EACH PARTY HERETO HEREBY AGREES THAT SECTIONS 9.05, 9.11 AND 9.15 OF THE CREDIT
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
-5-
Exhibit 10.31
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their
respective duly authorized officers as of the date first above written.
CERENCE INC.
By: _/s/ Dennis J. Close
Name: Dennis J. Close
Title: Vice President, Treasurer
CERENCE OPERATING COMPANY,
as a Subsidiary Loan Party
By: _/s/ Dennis J. Close
Name: Dennis J. Close
Title: Vice President, Treasurer
CONSOLIDATED MOBILE CORPORATION,
as a Subsidiary Loan Party
By: _/s/ Dennis J. Close
Name: Dennis J. Close
Title: Vice President, Treasurer
VOICEBOX TECHNOLOGIES LLC,
as a Subsidiary Loan Party
By: _/s/ Dennis J. Close
Name: Dennis J. Close
Title: Vice President, Treasurer
[Signature Page to Amendment No. 2]
WELLS FARGO BANK, N.A.,
as Administrative Agent, Collateral Agent and a Lender
Exhibit 10.31
By: _/s/ Denis Waltrich
Name: Denis Waltrich
Title: Director
TRUIST BANK,
as a Lender
By: _/s/ Jim C. Wright
Name: Jim C. Wright
Title: Vice President
SILICON VALLEY BANK,
as a Lender
By: _/s/ Allison Parent
Name: Allison Parent
Title: Vice President
CITIBANK, N.A.,
as a Lender
By: _/s/ Ronald Homa
Name: Ronald Homa
Title: Director
Exhibit A
Amended Credit Agreement
CREDIT AGREEMENT
dated as of June 12, 2020,
as amended by Amendment No. 1 on December 17, 2020,
as further amended by Amendment No. 2 on November 22, 2022,
CERENCE INC.,
as Borrower,
THE LENDERS AND ISSUING BANKS PARTY HERETO,
WELLS FARGO BANK, N.A.,
as Administrative Agent,
_________________
WELLS FARGO SECURITIES, LLC,
and
SUNTRUST ROBINSON HUMPHREY, INC.
as Joint Lead Arrangers and Joint Bookrunners
_________________
3
ARTICLE I Definitions
Page
TABLE OF CONTENTS
Section 1.01
Section 1.02
Section 1.03
Section 1.04
Section 1.05
Section 1.06
Section 1.07
Section 1.08
Section 1.09
Section 1.10
ARTICLE II The Credits
Section 2.01
Section 2.02
Section 2.03
Section 2.04
Section 2.05
Section 2.06
Section 2.07
Section 2.08
Section 2.09
Section 2.10
Section 2.11
Section 2.12
Defined Terms
Terms Generally
Effectuation of Transactions
Exchange Rates; Currency Equivalents
Additional Alternate Currencies for Loans
Change of Currency
Timing of Payment or Performance
Times of Day
Limited Conditionality Transactions
Divisions
Commitments
Loans and Borrowings
Requests for Borrowings
[Reserved]
Letters of Credit
Funding of Borrowings
Interest Elections
Termination and Reduction of Commitments
Repayment of Loans; Evidence of Debt
Repayment of Term Loans and Revolving Facility Loans
Prepayment of Loans
Fees
i
1
55
55
55
55
56
56
56
57
57
58
58
58
59
60
60
65
65
67
67
68
70
71
Section 2.13
Section 2.14
Section 2.15
Section 2.16
Section 2.17
Section 2.18
Section 2.19
Section 2.20
Section 2.21
Section 2.22
ARTICLE III Representations and
Warranties
Section 3.01
Section 3.02
Section 3.03
Section 3.04
Section 3.05
Section 3.06
Section 3.07
Section 3.08
Section 3.09
Section 3.10
Section 3.11
Section 3.12
Section 3.13
Interest
Alternate Rate of Interest
Increased Costs
Break Funding Payments
Taxes
Payments Generally; Pro Rata Treatment; Sharing of Set‑offs
Mitigation Obligations; Replacement of Lenders
Illegality
Incremental Commitments
Defaulting Lender
Organization; Powers
Authorization
Enforceability
Governmental Approvals
Financial Statements
No Material Adverse Effect
Title to Properties; Possession Under Leases
Subsidiaries
Litigation; Compliance with Laws
Federal Reserve Regulations
Investment Company Act
Use of Proceeds
Tax Returns
ii
72
72
73
74
75
78
80
81
81
90
92
92
92
93
93
93
93
93
94
94
95
95
95
95
Section 3.14
Section 3.15
Section 3.16
Section 3.17
Section 3.18
Section 3.19
Section 3.20
Section 3.21
Section 3.22
Section 3.23
Section 3.24
Section 3.25
Section 3.26
No Material Misstatements
Employee Benefit Plans
Environmental Matters
Security Documents
Location of Real Property
Solvency
Labor Matters
Insurance
No Default
Intellectual Property; Licenses, Etc.
Senior Debt
USA PATRIOT Act; OFAC
Foreign Corrupt Practices Act
ARTICLE IV Conditions of
Lending
Section 4.01
Section 4.02
ARTICLE V Affirmative
Covenants
All Credit Events
First Credit Event
Section 5.01
Section 5.02
Section 5.03
Section 5.04
Section 5.05
Section 5.06
Section 5.07
Existence; Business and Properties
Insurance
Taxes
Financial Statements, Reports, etc.
Litigation and Other Notices
Compliance with Laws
Maintaining Records; Access to Properties and Inspections
iii
95
96
96
96
97
97
98
98
98
98
98
99
99
100
100
100
102
102
103
104
104
106
106
107
Section 5.08
Section 5.09
Section 5.10
Section 5.11
Section 5.12
ARTICLE VI Negative Covenants
Section 6.01
Section 6.02
Section 6.03
Section 6.04
Section 6.05
Section 6.06
Section 6.07
Section 6.08
Section 6.09
Section 6.10
Section 6.11
ARTICLE VII Events of Default
Section 7.01
Section 7.02
Section 7.03
ARTICLE VIII The Agents
Use of Proceeds
Compliance with Environmental Laws
Further Assurances; Additional Security
[Reserved]
Post-Closing
Indebtedness
Liens
Sale and Lease-Back Transactions
Investments, Loans and Advances
Mergers, Consolidations, Sales of Assets and Acquisitions
Dividends and Distributions
Transactions with Affiliates
Business of the Borrower and the Subsidiaries
Limitation on Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.
Fiscal Year
Financial Covenants
Events of Default
Treatment of Certain Payments
[Reserved]
iv
107
107
107
110
110
110
110
115
121
121
125
128
131
133
133
136
136
136
136
139
139
139
Section 8.01
Section 8.02
Section 8.03
Section 8.04
Section 8.05
Section 8.06
Section 8.07
Section 8.08
Section 8.09
Section 8.10
Section 8.11
Section 8.12
Section 8.13
Section 8.14
ARTICLE IX Miscellaneous
Section 9.01
Section 9.02
Section 9.03
Section 9.04
Section 9.05
Section 9.06
Section 9.07
Section 9.08
Section 9.09
Section 9.10
Appointment
Delegation of Duties
Exculpatory Provisions
Reliance by Agents
Notice of Default
Non-Reliance on Agents and Other Lenders
Indemnification
Agent in Its Individual Capacity
Successor Administrative Agent
Arrangers
Security Documents and Collateral Agent
Right to Realize on Collateral and Enforce Guarantees
Withholding Tax
Certain ERISA Matters
Notices; Communications
Survival of Agreement
Binding Effect
Successors and Assigns
Expenses; Indemnity
Right of Set-off
Applicable Law
Waivers; Amendment
Interest Rate Limitation
Entire Agreement
v
139
140
140
141
142
142
143
143
143
144
144
145
145
146
147
147
147
148
148
153
154
155
155
158
158
159
159
159
160
160
160
161
162
164
164
164
164
164
165
165
Section 9.11
Section 9.12
Section 9.13
Section 9.14
Section 9.15
Section 9.16
Section 9.17
Section 9.18
Section 9.19
Section 9.20
Section 9.21
Section 9.22
Section 9.23
Section 9.24
Section 9.25
Exhibits and Schedules
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
WAIVER OF JURY TRIAL
Severability
Counterparts; Electronic Execution of Assignments and Certain Other
Documents
Headings
Jurisdiction; Consent to Service of Process
Confidentiality
Platform; Borrower Materials
Release of Liens and Guarantees
Judgment Currency
USA PATRIOT Act Notice
[Reserved]
Agency of the Borrower for the Loan Parties
No Liability of the Issuing Banks
Acknowledgment and Consent to Bail-In of Affected Financial Institutions
Acknowledgment Regarding Any Supported QFCs
Form of Assignment and Acceptance
Form of Administrative Questionnaire
Form of Solvency Certificate
Form of Borrowing Request
Form of Interest Election Request
[Reserved]
Form of First Lien/First Lien Intercreditor Agreement
Form of First Lien/Second Lien Intercreditor Agreement
vi
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Form of Non-Bank Tax Certificate
Form of Intercompany Subordination Terms
Form of Mortgage
Form of Prepayment Notice
Schedule 1.01(A)
Certain Excluded Equity Interests
Schedule 1.01(B)
Closing Date Immaterial Subsidiaries
Schedule 1.01(C)
Existing Roll-Over Letters of Credit
Schedule 1.01(D)
Closing Date Unrestricted Subsidiaries
Schedule 1.01(E)
Closing Date Mortgaged Properties
Schedule 1.01(F)
Specified L/C Sublimit
Schedule 1.01(G)
Certificates and Instruments
Schedule 2.01
Schedule 3.01
Schedule 3.04
Schedule 3.05
Commitments
Organization and Good Standing
Governmental Approvals
Financial Statements
Schedule 3.07(c)
Notices of Condemnation
Schedule 3.08(a)
Subsidiaries
Schedule 3.08(b)
Subscriptions
Schedule 3.13
Schedule 3.21
Schedule 3.23
Schedule 5.12
Schedule 6.01
Taxes
Insurance
Intellectual Property
Post-Closing Items
Indebtedness
Schedule 6.02(a)
Liens
Schedule 6.04
Investments
vii
Schedule 6.07
Schedule 9.01
Transactions with Affiliates
Notice Information
viii
CREDIT AGREEMENT, dated as of June 12, 2020 (this “Agreement”), among CERENCE INC., a Delaware corporation
(the “Borrower”), the LENDERS party hereto from time to time, and WELLS FARGO BANK, N.A., as Administrative Agent (in such
capacity, the “Administrative Agent”) for the Lenders and Collateral Agent for the Secured Parties.
WHEREAS, the Borrower has requested the Lenders and the Issuing Banks to extend credit as set forth herein;
and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:
NOW, THEREFORE, the Lenders and the Issuing Banks are willing to extend such credit to the Borrower on the terms
ARTICLE I
Definitions
below:
Section 1.01
Defined Terms. As used in this Agreement, the following terms shall have the meanings specified
“ABR” shall mean, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate in
effect for such day plus 0.50%, (b) the Prime Rate in effect on such day and (c) the Adjusted LIBO RateTerm SOFR for a one-month Interest
Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that for the
avoidance of doubt, the LIBO Rate for any day shall be based on the rate determined on such day at approximately 11:00 a.m. (London time)
by reference to the ICE Benchmark Administration Interest Settlement Rates (or the successor thereto if the ICE Benchmark Administration
is no longer making a LIBO Rate available) for deposits in Dollars (as set forth by any service selected by the Administrative Agent that has
been nominated by the ICE Benchmark Administration (or the successor thereto if the ICE Benchmark Administration is no longer making a
LIBO Rate available) as an authorized vendor for the purpose of displaying such rates). Any change in such rate due to atenor in effect on
such day plus 1.00%; each change in the ABR shall take effect simultaneously with the corresponding change or changes in the Prime Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the
Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.Adjusted Term SOFR, as applicable (provided
that clause (c) shall not be applicable during any period in which Adjusted Term SOFR is unavailable or unascertainable).
“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.
“ABR Loan” shall mean any ABR Term Loan or ABR Revolving Loan.
“ABR Revolving Facility Borrowing” shall mean a Borrowing comprised of ABR Revolving Loans.
ABR in accordance with the provisions of Article II.
“ABR Revolving Loan” shall mean any Revolving Facility Loan bearing interest at a rate determined by reference to the
with the provisions of Article II.
“ABR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the ABR in accordance
“Adjusted LIBO Rate” shall mean for any Interest Period: (A) as to any Eurocurrency Loan denominated in Dollars, (i) the
rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which
displays the London interbank offered rate
administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page) (the “US LIBO Rate”) for deposits
(for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately
11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate
referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate
determined by the Administrative Agent to be the offered rate on such other page or other service which displays the US LIBO Rate for
deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if US
LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the US
LIBO Rate shall be equal to the Interpolated Rate; provided, further, that if any such rate determined pursuant to the preceding clauses (i) or
(ii) is below 0.00%, the US LIBO Rate will be deemed to be 0.00%, (B) as to any Eurocurrency Loan denominated in Euros, (i) the rate per
annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the
European interbank offered rate administered by the Banking Federation of the European Union (such page currently being the EURIBOR01)
(the “EURIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in
Dollars, determined as of approximately 11:00 a.m. (Brussels, Belgium time), two Business Days prior to the commencement of such Interest
Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service
shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which
displays the EURIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in
Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest
Period; provided that if EURIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the
Interest Period elected, the EURIBO Rate shall be equal to the Interpolated Rate; provided, further, that if any such rate determined pursuant
to the preceding clauses (i) or (ii) is below 0.00%, the EURIBO Rate will be deemed to be 0.00%; and (C) as to any Eurocurrency Loan
denominated in an Alternate Currency other than Euros, (i) the rate per annum determined by the Administrative Agent to be the offered rate
which appears on the page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark
Administration Limited (the “Alternate Currency LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period in such Alternate Currency, determined as of approximately 11:00 a.m. (London, England time), two
Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not
appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be
the offered rate on such other page or other service which displays the Alternate Currency LIBO Rate for deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period in such Alternate Currency, determined as of approximately 11:00
a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if Alternate Currency
LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the
Alternate Currency LIBO Rate shall be equal to the Interpolated Rate; provided, further, that if any such rate determined pursuant to the
preceding clauses (i) or (ii) is below 0.00%, the Alternate Currency LIBO Rate will be deemed to be 0.00%.
“Adjusted Term SOFR” shall mean, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such
calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor,
then Adjusted Term SOFR shall be deemed to be the Floor.
2
“Adjustment Date” shall have the meaning assigned to such term in the definition of “Pricing Grid.”
together with its successors and assigns.
“Administrative Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement,
“Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.12(c).
supplied by the Administrative Agent.
“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit B or such other form
“Affected Financial Institution” shall mean (a) any EEA Financial Institution, or (b) any UK Financial Institution.
or more intermediaries, Controls or is Controlled by or is under common Control with the person specified.
“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one
“Agents” shall mean the Administrative Agent and the Collateral Agent.
amended, restated, supplemented or otherwise modified from time to time.
“Agreement” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, as may be
“Agreement Currency” shall have the meaning assigned to such term in Section 9.19.
“Alternate Currency” shall mean (i) with respect to any Letter of Credit, Canadian dollars, euros, British pounds sterling
and any other currency other than Dollars as may be acceptable to the Administrative Agent and the Issuing Bank with respect thereto in their
sole discretion and (ii) with respect to any Loan, any currency other than Dollars that is approved in accordance with SectionSections 1.05
and 9.08(i).
“Alternate Currency Equivalent” shall mean, at any time, with respect to any amount denominated in Dollars, the
equivalent amount thereof in the applicable Alternate Currency as determined by the Administrative Agent or the applicable Issuing Bank, as
the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of
such Alternate Currency with Dollars.
“Alternate Currency Letter of Credit” shall mean any Letter of Credit denominated in an Alternate Currency.
“Alternate Currency Loan” shall mean any Loan denominated in an Alternate Currency.
the Borrower, the Lenders party thereto, the Issuing Banks party thereto and the Administrative Agent.
“Amendment No. 1” shall mean that certain Amendment No. 1, dated as of December 17, 2020, to this Agreement, among
the Borrower, the Lenders party thereto and the Administrative Agent.
“Amendment No. 2” shall mean that certain Amendment No. 2, dated as of November 22, 2022, to this Agreement, among
“Amendment No. 2 Effective Date” shall mean November 22, 2022.
“Anti-Corruption Laws” shall have the meaning assigned to such term in Section 3.26(a).
3
“Applicable Commitment Fee” shall mean for any day (i) with respect to any Revolving Facility Commitments relating to
Initial Revolving Loans, 0.50% per annum; provided, however, that on and after the first Adjustment Date occurring after delivery of the
financial statements and certificates required by Section 5.04 upon the completion of one full fiscal quarter of the Borrower after the Closing
Date, the “Applicable Commitment Fee” will be determined pursuant to the Pricing Grid; or (ii) with respect to any other Revolving Facility
Commitments, the “Applicable Commitment Fee” set forth in the applicable Incremental Assumption Agreement.
“Applicable Date” shall have the meaning assigned to such term in Section 9.08(f).
“Applicable Margin” shall mean for any day (i) with respect to any Term A Loan, 3.00% per annum in the case of any
EurocurrencyTerm SOFR Loan and 2.00% per annum in the case of any ABR Loan; (ii) with respect to any Initial Revolving Loan, 3.00%
per annum in the case of any EurocurrencyTerm SOFR Loan and 2.00% per annum in the case of any ABR Loan; provided, however, that on
and after the first Adjustment Date occurring after delivery of the financial statements and certificates required by Section 5.04 upon the
completion of one full fiscal quarter of the Borrower after the Closing Date, the “Applicable Margin” with respect to a Term A Loan and an
Initial Revolving Loan will be determined pursuant to the Pricing Grid; and (iii) with respect to any Other Term Loan, the “Applicable
Margin” set forth in the Incremental Assumption Agreement relating thereto.
“Approved Fund” shall have the meaning assigned to such term in Section 9.04(b)(ii).
“Arrangers” shall mean, collectively, Wells Fargo Securities, LLC and SunTrust Robinson Humphrey, Inc.
leaseback of assets and any mortgage or lease of Real Property) to any person of, any asset or assets of the Borrower or any Subsidiary.
“Asset Sale” shall mean any loss, damage, destruction or condemnation of, or any Disposition (including any sale and
“Assignee” shall have the meaning assigned to such term in Section 9.04(b)(i).
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an Assignee, and
accepted by the Administrative Agent and the Borrower (if required by Section 9.04), in the form of Exhibit A or such other form (including
electronic documentation generated by use of an electronic platform) as shall be approved by the Administrative Agent and reasonably
satisfactory to the Borrower.
“Availability Period” shall mean, with respect to any Class of Revolving Facility Commitments, the period from and
including the Closing Date (or, if later, the effective date for such Class of Revolving Facility Commitments) to but excluding the earlier of
the Revolving Facility Maturity Date for such Class and, in the case of each of the Revolving Facility Loans, Revolving Facility Borrowings,
and Letters of Credit, the date of termination of the Revolving Facility Commitments of such Class.
“Available Tenor” shall mean, as of any date of determination and 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, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed
from the definition of “Interest Period” pursuant to Section 2.14(c)(iv).
4
“Available Unused Commitment” shall mean, with respect to a Revolving Facility Lender under any Class of Revolving
Facility Commitments at any time, an amount equal to the Dollar Equivalent of the amount by which (a) the applicable Revolving Facility
Commitment of such Revolving Facility Lender at such time exceeds (b) the applicable Revolving Facility Credit Exposure of such
Revolving Facility Lender at such time.
Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution
“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive
2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United
Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating
to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation,
administration or other insolvency proceedings).
“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred
with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.14(c)(i).
“Benchmark Replacement” meansshall mean, with respect to any Benchmark Transition Event, the sum of: (a) the alternate
benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due
consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the
Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate of interest as a
replacement to the US LIBO Rate for U.S. dollar-denominatedthen-current Benchmark for Dollar-denominated syndicated credit facilities at
such time and (b) the related Benchmark Replacement Adjustment;Adjustment; provided that, if thesuch Benchmark Replacement as so
determined would be less than 0.00% per annum, the Floor, such Benchmark Replacement will be deemed to be 0.00% per annumthe Floor
for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” meansshall mean, with respect to any replacement of the LIBO Ratethen-current
Benchmark with an Unadjusted Benchmark Replacement for eachany applicable Interest PeriodAvailable Tenor, 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 (i) to (a) any selection or recommendation of a spread adjustment, or
method for calculating or determining such spread adjustment, for the replacement of the LIBO Ratesuch Benchmark with the applicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body or (iib) 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 the LIBO Ratesuch
Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominatedDollar-denominated syndicated credit
facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical,
administrative or operational changes (including changes to the definition of “ABR,” the definition of “Interest Period,” timing and frequency
of determining rates and making payments of interest and other administrative matters) that the Administrative Agent and the Borrower
decide may be
5
appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the
Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any
portion of such market practice is not administratively feasible or if the Administrative Agent and the Borrower determine that no market
practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent and
the Borrower decide is reasonably necessary in connection with the administration of this Agreement).
“Benchmark Replacement Date” meansshall mean the earlierearliest to occur of the following events with respect to the LIBO
Ratethen-current Benchmark:
(a)
(a) Inin the case of clause (a) or (b) of the definition of “Benchmark Transition Event”,” the later of (i) the date of the public
statement or publication of information referenced therein and (ii) the date on which the administrator of the LIBO Ratesuch Benchmark (or
the published component used in the calculation thereof) permanently or indefinitely ceases to provide the LIBO Rateall Available Tenors of
such Benchmark (or such component thereof); or
(b)
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date of the publicon 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 of information referenced thereinin such clause (c) and even if any
Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b)
with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current
Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” meansshall mean the occurrence of one or more of the following events with respect to the LIBO
Ratethen-current Benchmark:
(a)
(a) a public statement or publication of information by or on behalf of the administrator of the LIBO Ratesuch Benchmark (or
the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide the LIBO
Rateall 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 the LIBO Rateany Available Tenor of such
Benchmark (or such component thereof);
(b)
(b) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate, the
U.S.such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve SystemBank of New York,
an insolvency official with jurisdiction over the administrator for the LIBO Ratesuch Benchmark (or such component), a resolution authority
with jurisdiction over the administrator for the LIBO Ratesuch Benchmark (or such component) or a court or an entity with similar
insolvency or resolution authority over the administrator for LIBO Ratesuch Benchmark (or such component), which states that the
administrator of LIBO Ratesuch Benchmark (or such component) has ceased or will cease to provide LIBO Rateall 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 the LIBO Rateany Available Tenor of such Benchmark (or such component thereof); or
6
(c)
(c) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate
announcing that the LIBO Rate is no longersuch Benchmark (or the published component used in the calculation thereof)announcing that all
Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a
public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such
Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means (a)shall mean, in the case of a Benchmark Transition Event, the earlier of (ia) the
applicable Benchmark Replacement Date and (iib) if such Benchmark Transition Event is a public statement or publication of information of
a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the
expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication)
and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by
notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders..
“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have
occurred with respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark
Replacement,shall mean the period (if any) (x) beginning at the time that sucha Benchmark Replacement Date has occurred if, at such time,
no Benchmark Replacement has replaced the LIBO Ratethen-current Benchmark for all purposes hereunder and under any Loan Document in
accordance with Section 2.14(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced the LIBO Ratethen-current
Benchmark for all purposes hereunder pursuant toand under any Loan Document in accordance with Section 2.14(c)(i).
Ownership Regulation.
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership required by the Beneficial
“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
“Benefit Plan” shall mean 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 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”.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.
such person is owned or managed by a single entity, the board of directors or other governing body of such entity.
“Board of Directors” shall mean, as to any person, the board of directors or other governing body of such person, or if
“Borrower” shall have the meaning assigned to such term in the introductory paragraph.
“Borrower Materials” shall have the meaning assigned to such term in Section 9.17(a).
case of EurocurrencySOFR Loans, as to which a single Interest Period is in effect.
“Borrowing” shall mean a group of Loans of a single Type under a single Facility, and made on a single date and, in the
7
Loans, $1,000,000.
“Borrowing Minimum” shall mean (a) in the case of EurocurrencySOFR Loans, $1,000,000 and (b) in the case of ABR
Loans, $250,000.
“Borrowing Multiple” shall mean (a) in the case of EurocurrencySOFR Loans, $500,000 and (b) in the case of ABR
“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially
in the form of Exhibit D or another form approved by the Administrative Agent (including any form on an electronic platform or electronic
transmission system as shall be approved by the Administrative Agent).
“Budget” shall have the meaning assigned to such term in Section 5.04(e).
“Business Day” shall mean any day that (a) is not a Saturday, Sunday or other day on which the Federal Reserve Bank of
New York is closed and (b) is not a day on which commercial banks in New York City are authorized or required by law to remain closed;
provided, that when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are
not open for dealings in deposits in Dollars in the London interbank market.Charlotte, North Carolina are closed.
“Capital Expenditures” shall mean, for any person in respect of any period, the aggregate of all expenditures incurred by
such person during such period that, in accordance with GAAP, are or should be included in “additions to property, plant or equipment” or
similar items reflected in the statement of cash flows of such person.
“Capitalized Lease Obligations” shall mean, at the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP; provided that obligations of the Borrower or its Subsidiaries, or of a special purpose or other
entity not consolidated with the Borrower and its Subsidiaries, either existing as of December 31, 2018 or created thereafter that (1) (a) were
not included on the consolidated balance sheet of the Borrower as capital lease obligations or finance lease obligations as of December 31,
2018 and were subsequently recharacterized as capital lease obligations or finance lease obligations or, in the case of such a special purpose
or other entity becoming consolidated with the Borrower and its Subsidiaries were required to be characterized as capital lease obligations or
finance lease obligations upon such consolidation, in either case, due to a change in accounting treatment or otherwise, or (b) did not exist as
of December 31, 2018 and were required to be characterized as capital lease obligations or finance lease obligations but would not have been
required to be treated as capital lease obligations or finance lease obligations as of December 31, 2018 had they existed at that time, shall for
all purposes not be treated as Capitalized Lease Obligations or Indebtedness or (2) (a) were included on the consolidated balance sheet of the
Borrower as capital lease obligations or finance lease obligations as of December 31, 2018, or (b) did not exist as of December 31, 2018 and
would have been required to be treated as capital lease obligations or finance lease obligations as of December 31, 2018 had they existed at
that time, shall for all purposes be treated as Capitalized Lease Obligations.
“Capitalized Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or
accrued as liabilities) by a person during such period in respect of licensed or purchased software or internally developed software and
software enhancements that, in accordance with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance
sheet of such person and its subsidiaries.
more of the Issuing Banks or Lenders, as collateral for Revolving L/C
“Cash Collateralize” shall mean to pledge and deposit with or deliver to the Collateral Agent, for the benefit of one or
8
Exposure or obligations of the Lenders to fund participations in respect of Revolving L/C Exposure, cash or deposit account balances or, if
the Administrative Agent and each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to
documentation in form and substance reasonably satisfactory to the Administrative Agent and each applicable Issuing Bank. “Cash
Collateral” and “Cash Collateralization” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash
collateral and other credit support.
“Cash Management Agreement” shall mean any agreement to provide to the Borrower or any Subsidiary cash
management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house
fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account
relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management
services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services.
“Cash Management Bank” shall mean any person that, at the time it enters into a Cash Management Agreement (or on the
Closing Date in the case of any Cash Management Agreement existing on the Closing Date), is an Agent, an Arranger, a Lender or an
Affiliate of any such person, in each case, in its capacity as a party to such Cash Management Agreement.
“CFC” shall mean a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.
A “Change in Control” shall be deemed to occur if any person, entity or “group” (within the meaning of Section 13(d) or
14(d) of the Exchange Act, but excluding any employee benefit plan of such person, entity or “group” and its subsidiaries and any person or
entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) shall at any time have acquired direct or
indirect beneficial ownership (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of voting power of the outstanding Voting
Stock of the Borrower having more than 50% of the ordinary voting power for the election of directors of the Borrower.
In addition, notwithstanding the foregoing, a transaction in which the Borrower becomes a subsidiary of another person
(such person, the “New Parent”) shall not constitute a Change in Control if, immediately following the consummation of such transaction, no
person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of
such person, entity or “group” and its subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), other than the New Parent or any subsidiary of the New Parent, beneficially owns, directly or indirectly
through one or more intermediaries, voting power of the Voting Stock of the Borrower or the New Parent having more than 50% of the
ordinary voting power for the election of directors of the Borrower or the New Parent.
“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in law,
treaty, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c)
compliance by any Lender (or, for purposes of Section 2.15(b), by any Lending Office of such Lender or by such Lender’s holding company,
if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or
issued after the Closing Date; provided, however, that notwithstanding anything herein to the contrary, (x) all requests, rules, guidelines or
directives under or issued in connection with the Dodd‑Frank Wall Street Reform and Consumer Protection Act, all interpretations and
applications thereof and any compliance by a Lender with any request or directive relating thereto and (y) all requests, rules, guidelines or
directives promulgated under or in connection with, all interpretations and applications of, or any compliance by a Lender with any request or
directive relating to International Settlements, the Basel
9
Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case under clauses (x) and (y) be deemed to be a “Change in Law” but only to the extent a
Lender is imposing applicable increased costs or costs in connection with capital adequacy requirements similar to those described in clauses
(a) and (b) of Section 2.15 generally on other borrowers of loans under United States of America cash flow term loan credit facilities.
“Charges” shall have the meaning assigned to such term in Section 9.09.
“Class” shall mean, (a) when used in respect of any Loan or Borrowing, whether such Loan or the Loans comprising such
Borrowing are Term A Loans, Other Term Loans, Initial Revolving Loans or Extended Revolving Loans; and (b) when used in respect of any
Commitment, whether such Commitment is in respect of a commitment to make Term A Loans, Other Term Loans, Initial Revolving Loans
or Extended Revolving Loans. Other Term Loans or Extended Revolving Loans that have different terms and conditions (together with the
Commitments in respect thereof) from the Term A Loans or the Initial Revolving Loans, respectively, or from other Other Term Loans or
other Extended Revolving Loans, as applicable, shall each be construed to be in separate and distinct Classes.
“Class Loans” shall have the meaning assigned to such term in Section 9.08(f).
“Closing Date” shall mean June 12, 2020.
Closing Date.
“Closing Date Mortgaged Properties” shall mean the Material Real Properties identified on Schedule 1.01(E) hereto on the
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collateral” shall mean all the “Collateral” (or equivalent term) as defined in any Security Document and shall also
include the Mortgaged Properties and all other property that is subject to any Lien in favor of the Administrative Agent, the Collateral Agent
or any Subagent for the benefit of the Secured Parties pursuant to any Security Document.
successors and permitted assigns in such capacity.
“Collateral Agent” shall mean the Administrative Agent acting as collateral agent for the Secured Parties, together with its
supplemented or otherwise modified from time to time, among the Borrower, each Subsidiary Loan Party and the Collateral Agent.
“Collateral Agreement” shall mean the Collateral Agreement, dated as of the Closing Date, as may be amended, restated,
(g) and Schedule 5.12):
“Collateral and Guarantee Requirement” shall mean the requirement that (in each case subject to Sections 5.10(d), (e) and
(a)
on the Closing Date, the Collateral Agent shall have received (i) from the Borrower and each Subsidiary Loan Party,
a counterpart of the Collateral Agreement and (ii) from each Subsidiary Loan Party, a counterpart of the Subsidiary Guarantee
Agreement, in each case duly executed and delivered on behalf of such person;
(b) on the Closing Date, (i)(x) all outstanding Equity Interests directly owned by the Loan Parties, other than Excluded
Securities, and (y) all Indebtedness owing to any Loan Party, other than Excluded Securities, shall have been pledged pursuant to
the Collateral Agreement, and (ii) the Collateral Agent shall have received certificates or other instruments (if any) representing
such Equity Interests and any notes or other instruments required to be delivered pursuant to the
10
applicable Security Documents, together with stock powers, note powers or other instruments of transfer (if any) with respect
thereto endorsed in blank (other than share certificates issued by Foreign Subsidiaries, which shall not be required to be delivered);
provided that with respect to the certificates and instruments set forth on Schedule 1.01(G), delivery of such certificates and
instruments will only be required to occur on or promptly after a date on which an employee or agent of the applicable Loan Party is
able to access such certificate or instruments in compliance with all COVID-19 lockdown measures;
(c)
in the case of any person that becomes a Subsidiary Loan Party after the Closing Date, the Collateral Agent shall
have received (i) a supplement to the Collateral Agreement and the Subsidiary Guarantee Agreement and (ii) supplements to the
other Security Documents, if applicable, in the form specified therefor or otherwise reasonably acceptable to the Administrative
Agent, in each case, duly executed and delivered on behalf of such Subsidiary Loan Party;
(d)
after the Closing Date, (x) all outstanding Equity Interests of any person that becomes a Subsidiary Loan Party after
the Closing Date and (y) subject to Section 5.10(g), all Equity Interests directly acquired by the Borrower or a Subsidiary Loan
Party after the Closing Date, other than Excluded Securities, shall have been pledged pursuant to the Collateral Agreement, together
with stock powers or other instruments of transfer (if any) with respect thereto endorsed in blank (other than share certificates issued
by Foreign Subsidiaries, which shall not be required to be delivered and provided that with respect to any such certificates or
instruments for which delivery is not practicable at such time due to COVID-19 lockdown measures as identified in writing by the
applicable Loan Party to the Administrative Agent, delivery of such certificates and instruments will only be required to occur on or
promptly after a date on which an employee or agent of the applicable Loan Party is able to access such certificate or instruments in
compliance with all COVID-19 lockdown measures);
(e)
except as otherwise contemplated by this Agreement or any Security Document, all documents and instruments,
including Uniform Commercial Code financing statements, and filings with the United States Copyright Office and the United
States Patent and Trademark Office, and all other actions reasonably requested by the Administrative Agent (including those
required by applicable Requirements of Law) to be delivered, filed, registered or recorded to create the Liens intended to be created
by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and
with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Collateral
Agent for filing, registration or the recording concurrently with, or promptly following, the execution and delivery of each such
Security Document;
(f) within (x) 90 days after the Closing Date with respect to each Closing Date Mortgaged Property set forth on Schedule
1.01(E) (or on such later date as the Administrative Agent may agree in its reasonable discretion) and (y) the time periods set forth
in Section 5.10 with respect to Mortgaged Properties encumbered pursuant to said Section 5.10, the Collateral Agent shall have
received (i) counterparts of each Mortgage to be entered into with respect to each such Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property and suitable for recording or filing in all filing or recording offices that
the Administrative Agent may reasonably deem necessary or desirable in order to create a valid and enforceable Lien subject to no
other Liens except Permitted Liens, at the time of recordation thereof, (ii) with respect to the Mortgage encumbering each such
Mortgaged Property, opinions of counsel regarding the enforceability, due authorization, execution and delivery of the Mortgages
and such other matters customarily covered in real estate counsel opinions as the Administrative Agent may reasonably request, in
form and substance reasonably acceptable to the Administrative Agent, (iii) with respect
11
to each such Mortgaged Property, the Flood Documentation and (iv) such other documents as the Administrative Agent may
reasonably request that are available to the Borrower without material expense with respect to any such Mortgage or Mortgaged
Property; provided that, notwithstanding anything herein to the contrary, if any Loan Party shall be required to deliver a Mortgage
on any new or additional Mortgaged Property pursuant to this Agreement or any other Loan Document, no such Mortgage shall be
(nor be required to be) granted by the applicable Loan Party nor accepted by the Collateral Agent until (x) each Revolving Facility
Lender has received the Flood Documentation, at least twenty days in advance of signing, and (y) receipt of confirmation from the
Administrative Agent that each Revolving Facility Lender has confirmed to the Administrative Agent that it has completed its flood
insurance due diligence to its reasonable satisfaction.
(g) within (x) 90 days after the Closing Date with respect to each Closing Date Mortgaged Property set forth on Schedule
1.01(E) (or on such later date as the Administrative Agent may agree in its reasonable discretion) and (y) the time periods set forth
in Section 5.10 with respect to Mortgaged Properties encumbered pursuant to said Section 5.10, the Collateral Agent shall have
received (i) a policy or policies or marked up unconditional binder of title insurance with respect to each such Mortgaged Property
located in the United States of America, or a date-down and modification endorsement, if available, in an amount reasonably
acceptable to the Administrative Agent with respect to such Mortgaged Property (not to exceed the fair market value of the
applicable Mortgaged Property, as determined in good faith by the Borrower), paid for by the Borrower, issued by a nationally
recognized title insurance company, insuring the Lien of each Mortgage as a valid Lien on the Mortgaged Property described
therein, free of any other Liens except Permitted Liens, together with such customary endorsements, coinsurance and reinsurance as
the Administrative Agent may reasonably request and which are available at commercially reasonable rates in the jurisdiction where
the applicable Mortgaged Property is located, (ii) a survey or “express map” (or other aerial map) of each Mortgaged Property
(including all improvements, easements and other customary matters thereon reasonably required by the Administrative Agent), as
applicable, for which all necessary fees (where applicable) have been paid with respect to each such Mortgaged Property located in
the United States of America, which is (A) in the case of a survey, complying in all material respects with the minimum detail
requirements of the American Land Title Association and American Congress of Surveying and Mapping as such requirements are
in effect on the date of preparation of such survey and (B) in each case, sufficient for such title insurance company to remove all
standard survey exceptions from the title insurance policy relating to such Mortgaged Property and issue the customary survey
related endorsements or otherwise reasonably acceptable to the Administrative Agent and (iii) appraisals with respect to each such
Mortgaged Property complying in all material respects with FIRREA and USPAP, in each case, to the extent required by applicable
law;
(h)
the Collateral Agent shall have received evidence of the insurance required by the terms of Section 5.02 hereof; and
(i)
after the Closing Date, the Collateral Agent shall have received (i) such other Security Documents as may be required
to be delivered pursuant to Section 5.10 or the Collateral Agreement, and (ii) upon reasonable request by the Administrative Agent,
evidence of compliance with any other requirements of Section 5.10.
“Commitment Fee” shall have the meaning assigned to such term in Section 2.12(a).
Commitment.
“Commitments” shall mean, with respect to any Lender, such Lender’s Revolving Facility Commitment and Term Facility
12
time, and any successor statute.
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to
“Communication” shall have the meaning assigned to such term in Section 9.13.
“Conduit Lender” shall mean any special purpose corporation organized and administered by any Lender for the purpose
of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided, that the
designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this
Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender; provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Sections 2.15, 2.16,
2.17 or 9.05 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit
Lender unless the designation of such Conduit Lender is made with the prior written consent of the Borrower (not to be unreasonably
withheld or delayed), which consent shall specify that it is being made pursuant to the proviso in the definition of “Conduit Lender” and
provided that the designating Lender provides such information as the Borrower reasonably requests in order for the Borrower to determine
whether to provide its consent or (b) be deemed to have any Commitment.
“Conforming Changes” shall mean, 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 “ABR,” 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 2.16 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 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).
“Consolidated Debt” at any date shall mean the sum of (without duplication) all Indebtedness (other than letters of credit
or bank guarantees, to the extent undrawn) consisting of Indebtedness for borrowed money, Capitalized Lease Obligations, and third party
debt obligations evidenced by promissory notes or similar instruments (and, excluding, for the avoidance of doubt, Hedging Agreements) of
the Borrower and the Subsidiaries determined on a consolidated basis on such date in accordance with GAAP.
person and its subsidiaries for such period, on a consolidated basis; provided, however, that, without duplication,
“Consolidated Net Income” shall mean, with respect to any person for any period, the aggregate of the Net Income of such
(i)
(A) any net after-tax extraordinary, exceptional, nonrecurring or unusual gains or losses or income or expense or
charge (less all fees and expenses relating thereto), (B) any severance, relocation or other restructuring expenses (including any cost
or expense related to
13
employment of terminated employees), any expenses related to any reconstruction, decommissioning, recommissioning or
reconfiguration of fixed assets for alternative uses, fees, expenses or charges relating to closing costs, rebranding costs, curtailments
or modifications to pension and post-retirement employee benefit plans, excess pension charges, acquisition integration costs,
opening costs, recruiting costs, signing, retention or completion bonuses, and (C) litigation and arbitration costs, charges, fees and
expenses (including settlements), and expenses or charges related to any offering of Equity Interests or debt securities of the
Borrower, any Investment, acquisition, Disposition, recapitalization or incurrence, issuance, repayment, repurchase, refinancing,
amendment or modification of Indebtedness (in each case, whether or not successful), and any fees, expenses, charges or change of
control payments related to the Transactions or the Spin-Off Transaction, in each case of clauses (A) through (C), shall be excluded,
(ii) any net after-tax income or loss from Disposed of, abandoned, closed or discontinued operations or fixed assets and
any net after-tax gain or loss on the Dispositions of Disposed of, abandoned, closed or discontinued operations or fixed assets shall
be excluded,
(iii) any net after-tax gain or loss (less all fees and expenses or charges relating thereto) attributable to business
Dispositions or asset Dispositions other than in the ordinary course of business (as determined in good faith by the management of
the Borrower) shall be excluded,
(iv) any net after-tax income or loss (less all fees and expenses or charges relating thereto) attributable to the early
extinguishment or buy-back of indebtedness, Hedging Agreements or other derivative instruments shall be excluded,
(v) (A) the Net Income for such period of any person that is not a subsidiary of such person, or is an Unrestricted
Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent person or a subsidiary
thereof (other than an Unrestricted Subsidiary of such referent person) in respect of such period and (B) the Net Income for such
period shall include any dividend, distribution or other payment in cash (or to the extent converted into cash) received by the
referent person or a subsidiary thereof (other than an Unrestricted Subsidiary of such referent person) from any person in excess of,
but without duplication of, the amounts included in subclause (A),
(vi) the cumulative effect of a change in accounting principles during such period shall be excluded,
(vii) effects of purchase accounting adjustments (including the effects of such adjustments pushed down to such person
and its subsidiaries and including the effects of adjustments to (A) deferred rent, (B) Capitalized Lease Obligations or other
obligations or deferrals attributable to capital spending funds with suppliers or (C) any deferrals of revenue) in component amounts
required or permitted by GAAP, resulting from the application of purchase accounting or the amortization or write-off of any
amounts thereof, net of taxes, shall be excluded,
(viii)
any impairment charges or asset write-offs, in each case pursuant to GAAP, and the amortization of intangibles
and other fair value adjustments arising pursuant to GAAP, shall be excluded,
(ix) any (a) non-cash compensation charge or (b) costs or expenses realized or resulting from stock option plans,
employee benefit plans or post-employment benefit plans, or grants or
14
sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights shall be excluded,
(x) accruals and reserves that are established or adjusted in connection with the Transactions or within twelve months
after the Closing Date or the closing of any acquisition or investment and that are so required to be established or adjusted in
accordance with GAAP or as a result of adoption or modification of accounting policies shall be excluded,
(xi) non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard
under GAAP and related interpretation shall be excluded,
(xii) any gain, loss, income, expense or charge resulting from the application of any LIFO method shall be excluded,
(xiii)
any non-cash charges for deferred tax asset valuation allowances shall be excluded,
(xiv)
any currency translation gains and losses related to currency remeasurements of Indebtedness, and any net loss
or gain resulting from Hedging Agreements for currency exchange risk, shall be excluded,
(xv) [reserved],
(xvi)
[reserved],
(xvii)
(A) to the extent covered by insurance and actually reimbursed, or, so long as such person has made a
determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent
that such amount is (x) not denied by the applicable carrier in writing within 180 days and (y) in fact reimbursed within 365 days
following the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365
days), expenses with respect to liability or casualty events or business interruption shall be excluded; and (B) amounts estimated in
good faith to be received from insurance in respect of lost revenues or earnings in respect of liability or casualty events or business
interruption shall be included (with a deduction for amounts actually received up to such estimated amount to the extent included in
Net Income in a future period),
(xviii)
[reserved], and
excluded;
(xix)
Amortization of Capitalized Software Expenditures and capitalized software development costs shall be
provided that the aggregate adjustments with respect to cash items (and, for the avoidance of doubt, excluding non-cash
items) made pursuant to clauses (i)(A) and (i)(B) above and clause (iv) of the definition of “EBITDA” shall not exceed (x) during the
Covenant Adjustment Period, $12,000,000 for the applicable Test Period or Reference Period or (y) 20% of EBITDA for the applicable Test
Period or Reference Period (calculated prior to giving effect to such capped adjustments (but for the avoidance of doubt, after giving effect to
other uncapped pro forma adjustments)).
“Consolidated Total Assets” shall mean, as of any date of determination, the total assets of the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP, as set forth on the consolidated balance sheet of the Borrower as
of the last day of the fiscal quarter most recently ended for which financial statements have been (or were required to be) delivered pursuant
to Section 4.02(e), 5.04(a) or 5.04(b), as applicable, calculated on a Pro Forma Basis after giving effect to any
15
acquisition or Disposition of a person or assets that may have occurred on or after the last day of such fiscal quarter.
“Continuing Letter of Credit” shall have the meaning assigned to such term in Section 2.05(k).
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and “Controlling” and “Controlled”
shall have meanings correlative thereto.
“Covered Party” shall have the meaning assigned to such term in Section 9.25(a).
“Convertible Securities” shall mean debt securities, the terms of which provide for conversion into Equity Interests (other
than Disqualified Stock), cash or a combination thereof, including, without limitation, the obligations under that certain Indenture, dated as of
June 2, 2020, among Borrower, the guarantors from time to time party thereto and U.S. Bank National Association, as Trustee, in respect of
the 3.000% Convertible Senior Notes due 2025 issued by Borrower.
“Covenant Adjustment Period” shall mean the period commencing on January 1, 2023 and ending on the earliest of (i) the
date on which Borrower delivers to the Administrative Agent the financial statements and compliance certificate required pursuant to
Sections 9.04(a) and 9.04(c) for the fiscal quarter ended December 31, 2023, and (ii) the day upon which Borrower shall have notified the
Administrative Agent in writing that it has elected to end the Covenant Adjustment Period; provided that, if the Borrower elects to end the
Covenant Adjustment Period pursuant to clause (ii) above, the Covenant Adjustment Period cannot be reinstated.
“Credit Event” shall have the meaning assigned to such term in Article IV.
“Debtor Relief Laws” shall mean the U.S. Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of
the United States of America or other applicable jurisdictions from time to time in effect.
“Declining Lender” shall have the meaning assigned to such term in Section 2.10(c)(i).
“Deemed Date” shall have the meaning assigned to such term in Section 6.01.
“Default” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.
“Defaulting Lender” shall mean, subject to Section 2.22, any Lender that (a) has failed to (i) fund all or any portion of its
Loans within two Business Days of the date such Loans were required to be funded hereunder or (ii) pay to the Administrative Agent, any
Issuing Bank 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, Administrative Agent or any Issuing Bank in writing
that it does not intend or expect to comply with its funding obligations hereunder or generally under other agreements in which it commits to
extend credit, or has made a public statement to that effect, (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
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Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding
under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of
creditors or similar person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a capacity 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 company thereof by a Governmental Authority so long as such ownership interest does not result in or provide
such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs
of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or
more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Defaulting Lender (subject to Section 2.22) upon delivery of written notice of such determination to the Borrower, each Issuing Bank and
each Lender.
“Designated Non-Cash Consideration” shall mean the fair market value (as determined in good faith by the Borrower) of
non-cash consideration received by the Borrower or one of its Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth such valuation, less the
amount of cash equivalents received in connection with a subsequent disposition of, or other receipt of cash equivalents in respect of, such
Designated Non-Cash Consideration.
such person who does not have any material direct or indirect financial interest in or with respect to such transaction.
“Disinterested Director” shall mean, with respect to any person and transaction, a member of the Board of Directors of
dispose of any property, business or asset. The term “Disposition” shall have a correlative meaning to the foregoing.
“Dispose” or “Disposed of” shall mean to convey, sell, lease, sell and leaseback, assign, farm-out, transfer or otherwise
“Disqualified Lender” shall mean (i) the persons identified as “Disqualified Lenders” in writing to the Arrangers by the
Borrower on or prior to the Closing Date, and (ii) the persons as may be identified in writing to the Administrative Agent by the Borrower
from time to time thereafter (in the case of this clause (ii)) in respect of bona fide business competitors of the Borrower (in the good faith
determination of the Borrower), by delivery of a notice thereof to the Administrative Agent setting forth such person or persons (or the
person or persons previously identified to the Administrative Agent that are to be no longer considered “Disqualified Lenders”); provided,
that no such updates pursuant to this clause (ii) shall be deemed to retroactively disqualify any parties that have previously acquired an
assignment or participation interest in respect of the Loans from continuing to hold or vote such previously acquired assignments and
participations on the terms set forth herein for Lenders that are not Disqualified Lenders.
“Disqualified Stock” shall mean, with respect to any person, any Equity Interests of such person 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 so long as any rights of the holders thereof upon the occurrence
of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Loan Obligations that are
accrued and payable and the termination of the Commitments), (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 payment of dividends in
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cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified
Stock, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date in effect at the time of issuance thereof
(provided, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or
are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock). Notwithstanding the
foregoing: (i) any Equity Interests issued to any employee or to any plan for the benefit of employees of the Borrower or the Subsidiaries or
by any such plan to such employees shall not constitute Disqualified Stock solely because they may be required to be repurchased by the
Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability
and (ii) any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of
Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.
“Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b)
with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the
Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or other
applicable date of determination) for the purchase of Dollars with such currency.
“Dollars” or “$” shall mean lawful money of the United States of America.
“Domestic Subsidiary” shall mean any Subsidiary that is not a Foreign Subsidiary.
“Early Opt-in Election” shall mean the occurrence of:
(1) (i) a determination by the Borrower and the Administrative Agent or (ii) a notification by the Required Lenders to the
Administrative Agent (with a copy to the Borrower) that the Required Lenders and the Borrower have determined that U.S. dollar-
denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in this
Section titled “Effect of Benchmark Transition Event,” are being executed or amended, as applicable, to incorporate or adopt a new
benchmark interest rate to replace LIBOR, and
(2) (i) the election by the Borrower and the Administrative Agent or (ii) the election by the Borrower and the Required
Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of
written notice of such election to the Lenders or by the Required Lenders of written notice of such election to the Administrative
Agent and the Borrower.
“EBITDA” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, the
Consolidated Net Income of the Borrower and the Subsidiaries for such period plus (a) the sum of (in each case without duplication and to
the extent the respective amounts described in subclauses (i) through (xiii) of this clause (a) reduced such Consolidated Net Income (and
were not excluded therefrom) for the respective period for which EBITDA is being determined):
(i) provision for Taxes based on income, profits or capital of the Borrower and the Subsidiaries for such period,
including, without limitation, state, franchise and similar taxes and foreign withholding taxes (including penalties and interest
related to taxes or arising from tax examinations) and the amount of any distributions pursuant to Section 6.06(b)(iii) or Section
6.06(b)(v),
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(ii) Interest Expense (and to the extent not included in Interest Expense, (x) all cash dividend payments (excluding items
eliminated in consolidation) on any series of preferred stock or Disqualified Stock and (y) costs of surety bonds in connection with
financing activities) of the Borrower and the Subsidiaries for such period, together with items excluded from the definition of
“Interest Expense” pursuant to clause (a) thereof,
(iii) depreciation and amortization expenses of the Borrower and the Subsidiaries for such period including the
amortization of intangible assets, deferred financing fees, original issue discount and Capitalized Software Expenditures,
amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment
benefits,
(iv) business optimization expenses and other restructuring charges or reserves (which, for the avoidance of doubt, shall
include the effect of inventory optimization programs, facility, branch, office or business unit closures, facility, branch, office or
business unit consolidations, retention, severance, systems establishment costs, contract termination costs, future lease commitments
and excess pension charges); provided that the aggregate adjustments with respect to cash items (and, for the avoidance of doubt,
excluding non-cash items) made pursuant to this clause (iv), together with the aggregate adjustments with respect to cash items
(and, for the avoidance of doubt, excluding non-cash items) made pursuant to clauses (i)(A) and (i)(B) of the definition of
“Consolidated Net Income”, shall not exceed (x) during the Covenant Adjustment Period, $12,000,000 for the applicable Test
Period or Reference Period or (y) 20% of EBITDA for the applicable Test Period or Reference Period (calculated prior to giving
effect to such capped adjustments (but for the avoidance of doubt, after giving effect to other uncapped pro forma adjustments)),
(v) any other non-cash charges; provided, that for purposes of this subclause (v) of this clause (a), any non-cash charges
or losses shall be treated as cash charges or losses in any subsequent period during which cash disbursements attributable thereto are
made (but excluding, for the avoidance of doubt, amortization of a prepaid cash item that was paid in a prior period),
(vi) [reserved],
(vii) any expenses or charges (other than depreciation or amortization expense as described in the preceding subclause
(iii)) related to any issuance of Equity Interests, Investment, acquisition, Disposition, recapitalization or the incurrence, modification
or repayment of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not
successful), including (x) such fees, expenses or charges related to this Agreement, (y) any amendment or other modification of the
Obligations or other Indebtedness and (z) commissions, discounts, yield and other fees and charges (including any interest expense)
related to any Permitted Securitization Financing,
(viii)
the amount of loss or discount in connection with a Permitted Securitization Financing, including amortization
of loan origination costs and amortization of portfolio discounts,
(ix) any costs or expense incurred pursuant to any management equity plan or stock option plan or any other management
or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses
are funded with cash proceeds contributed to the capital of the Borrower or a Subsidiary Loan Party (other than contributions
received from the Borrower or another Subsidiary Loan Party) or net cash proceeds of an issuance of Equity Interests of the
Borrower (other than Disqualified Stock),
(x) [reserved],
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(xi) [reserved],
(xii) with respect to any joint venture that is not a Subsidiary and solely to the extent relating to any net income referred to
in clause (v) of the definition of “Consolidated Net Income,” an amount equal to the proportion of those items described in
subclauses (i) and (ii) above relating to such joint venture corresponding to the Borrower’s and the Subsidiaries’ proportionate share
of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Subsidiary), and
(xiii)
one-time costs associated with commencing Public Company Compliance;
minus (b) the sum of (without duplication and to the extent the amounts described in this clause (b) increased such Consolidated Net Income
for the respective period for which EBITDA is being determined) non-cash items increasing Consolidated Net Income of the Borrower and
the Subsidiaries for such period (but excluding any such items (A) in respect of which cash was received in a prior period or will be received
in a future period or (B) which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in
any prior period).
For purposes of determining EBITDA under this Agreement, the caps on the aggregate adjustments made pursuant to clause (iv) of the
definition of “EBITDA” and clauses (i), (ii), (iii) and (viii) of the definition of “Consolidated Net Income” shall not apply to any such
adjustments made during any fiscal quarter ending on or prior to June 30, 2020.
“EEA Financial Institution” shall mean (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” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean 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.
“Electronic Copy” shall have the meaning assigned to such term in Section 9.13.
“Electronic Record” shall have the meaning assigned to such term in Section 9.13.
“Electronic Signature” shall have the meaning assigned to such term in Section 9.13.
operation of a single or unified European currency.
“EMU Legislation” shall mean the legislative measures of the European Council for the introduction of, changeover to or
Borrower, Wells Fargo Securities, LLC and Wells Fargo bank, N.A.
“Engagement Letter” shall mean that certain Engagement and Fee Letter dated as of May 27, 2020 by and among the
“Environment” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable
water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in
any Environmental Law.
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“Environmental Laws” shall mean all applicable laws (including common law), rules, regulations, codes, ordinances,
orders, binding agreements, decrees or judgments, promulgated or entered into by or with any Governmental Authority, relating in any way to
the Environment, preservation or reclamation of natural resources, the generation, use, transport, management, Release or threatened Release
of, or exposure to, any Hazardous Material or to public or employee health and safety matters (to the extent relating to exposure to Hazardous
Materials).
“Environmental Permits” shall have the meaning assigned to such term in Section 3.16.
“Equity Interests” of any person shall mean any and all shares, interests, rights to purchase or otherwise acquire, warrants,
options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any
preferred stock, any limited or general partnership interest and any limited liability company membership interest; provided that Equity
Interests shall exclude Convertible Securities (irrespective of whether settled in Equity Interests or cash) and Permitted Call Spread
Agreements.
time and any final regulations promulgated and the rulings issued thereunder.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the Borrower or a
Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” shall mean (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect
to a Plan; (b) with respect to any Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of
ERISA, whether or not waived; (c) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of
ERISA or Section 430(i)(4) of the Code); (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under
Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (e) the
incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of
any Plan or Multiemployer Plan; (f) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (g)
the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from
any Plan or Multiemployer Plan; (h) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the impending imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of
ERISA, or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA; (i) the conditions for
imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; or (j) the withdrawal of any of the
Borrower, a Subsidiary or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a
“substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA.
“Erroneous Payment” has the meaning assigned thereto in Section 8.15(a).
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“Erroneous Payment Deficiency Assignment” has the meaning assigned thereto in Section 8.15(d).
“Erroneous Payment Impacted Class” has the meaning assigned thereto in Section 8.15(d).
“Erroneous Payment Return Deficiency” has the meaning assigned thereto in Section 8.15(d).
Association (or any successor person), as in effect from time to time.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market
Legislation.
“Euro” shall mean the lawful currency of the Participating Member States introduced in accordance with the EMU
“Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.
“Eurocurrency Loan” shall mean any Eurocurrency Term Loan or Eurocurrency Revolving Loan.
“Eurocurrency Revolving Facility Borrowing” shall mean a Borrowing comprised of Eurocurrency Revolving Loans.
to the Adjusted LIBO Rate in accordance with the provisions of Article II.
“Eurocurrency Revolving Loan” shall mean any Revolving Facility Loan bearing interest at a rate determined by reference
LIBO Rate in accordance with the provisions of Article II.
“Eurocurrency Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the Adjusted
“Event of Default” shall have the meaning assigned to such term in Section 7.01.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Contributions” shall mean the cash and the fair market value of assets other than cash (as determined by the
Borrower in good faith) received by the Borrower after the Closing Date from: (a) contributions to its common Equity Interests, and (b) the
sale or issuance (other than to a Subsidiary of the Borrower or to any Subsidiary management equity plan or stock option plan or any other
management or employee benefit plan or agreement) of Qualified Equity Interests of the Borrower, in each case designated as Excluded
Contributions pursuant to a certificate of a Responsible Officer of the Borrower on or promptly after the date such capital contributions are
made or the date such Equity Interest is sold or issued, as the case may be.
“Excluded Indebtedness” shall mean all Indebtedness not incurred in violation of Section 6.01.
“Excluded Property” shall have the meaning assigned to such term in Section 5.10(g).
“Excluded Securities” shall mean any of the following:
(a) any Equity Interests or Indebtedness with respect to which the Administrative Agent and the Borrower reasonably
agree that the cost or other consequences of pledging such Equity
22
Interests or Indebtedness in favor of the Secured Parties under the Security Documents are likely to be excessive in relation to the
value to be afforded thereby;
(b)
in the case of any pledge of voting Equity Interests of any Foreign Subsidiary (in each case, that is owned directly by
the Borrower or a Subsidiary Loan Party) to secure the Obligations, any voting Equity Interest of such Foreign Subsidiary in excess
of 65% of the outstanding Equity Interests of such class;
(c)
in the case of any pledge of voting Equity Interests of any FSHCO (in each case, that is owned directly by the
Borrower or a Subsidiary Loan Party) to secure the Obligations, any voting Equity Interest of such FSHCO in excess of 65% of the
outstanding Equity Interests of such class;
(d) any Equity Interests or Indebtedness to the extent the pledge thereof would be prohibited by any Requirement of Law
after giving effect to the anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction;
(e) any Equity Interests of any person that is not a Wholly Owned Subsidiary to the extent (A) that a pledge thereof to
secure the Obligations is prohibited by (i) any applicable organizational documents, joint venture agreement or shareholder
agreement or (ii) any other contractual obligation with an unaffiliated third party not in violation of Section 6.09(c) binding on such
Equity Interests to the extent in existence on the Closing Date or on the date of acquisition thereof and not entered into in
contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))
(other than, in this subclause (A)(ii), customary non-assignment provisions which are ineffective under Article 9 of the Uniform
Commercial Code or other applicable Requirements of Law), (B) any organizational documents, joint venture agreement or
shareholder agreement (or other contractual obligation referred to in subclause (A)(ii) above) prohibits such a pledge without the
consent of any other party; provided, that this clause (B) shall not apply if (1) such other party is a Loan Party or a Wholly Owned
Subsidiary or (2) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed
to obligate the Borrower or any Subsidiary to obtain any such consent) and shall only apply for so long as such organizational
documents, joint venture agreement or shareholder agreement or replacement or renewal thereof is in effect, or (C) a pledge thereof
to secure the Obligations would give any other party (other than a Loan Party or a Wholly Owned Subsidiary) to any organizational
documents, joint venture agreement or shareholder agreement governing such Equity Interests (or other contractual obligation
referred to in subclause (A)(ii) above) the right to terminate its obligations thereunder (other than, in the case of other contractual
obligations referred to in subclause (A)(ii), customary non-assignment provisions which are ineffective under Article 9 of the
Uniform Commercial Code or other applicable Requirement of Law);
(f) any Equity Interests of any Immaterial Subsidiary, any Unrestricted Subsidiary, any not-for-profit entity or any
Special Purpose Securitization Subsidiary;
(g) any Equity Interests of any Subsidiary of, or other Equity Interests owned by, a Foreign Subsidiary;
(h) any Equity Interests of any Subsidiary to the extent that the pledge of such Equity Interests could reasonably be
expected to result in material adverse tax consequences to the Borrower or any Subsidiary as determined in good faith by the
Borrower in consultation with the Administrative Agent;
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(i) any Equity Interests or Indebtedness that are set forth on Schedule 1.01(A) to this Agreement or that have been
identified on or prior to the Closing Date in writing to the Agent by a Responsible Officer of the Borrower and agreed to by the
Administrative Agent; and
(k) any Margin Stock.
“Excluded Subsidiary” shall mean any of the following (except as otherwise provided in clause (b) of the definition of
“Subsidiary Loan Party”):
(a) each Immaterial Subsidiary,
(b) each Domestic Subsidiary that is not a Wholly Owned Subsidiary (for so long as such Subsidiary remains a non-
Wholly Owned Subsidiary),
(c) each Domestic Subsidiary that is prohibited from Guaranteeing or granting Liens to secure the Obligations by any
Requirement of Law or that would require consent, approval, license or authorization of a Governmental Authority to Guarantee or
grant Liens to secure the Obligations (unless such consent, approval, license or authorization has been received),
(d) each Domestic Subsidiary that is prohibited by any applicable contractual requirement from Guaranteeing or
granting Liens to secure the Obligations on the Closing Date or at the time such Subsidiary becomes a Subsidiary not in violation of
Section 6.09(c) (and for so long as such restriction or any replacement or renewal thereof is in effect),
(e) any Special Purpose Securitization Subsidiary,
(f) any Foreign Subsidiary,
(g) any Domestic Subsidiary (i) that is an FSHCO or (ii) that is a Subsidiary of a Foreign Subsidiary that is a CFC,
(h) any other Domestic Subsidiary with respect to which, (x) the Administrative Agent and the Borrower reasonably
agree that the cost or other consequences of providing a Guarantee of or granting Liens to secure the Obligations are likely to be
excessive in relation to the value to be afforded thereby, (y) in the case of any person that becomes a Domestic Subsidiary after the
Closing Date, providing such a Guarantee or granting such Liens could reasonably be expected to result in material adverse tax
consequences as determined in good faith by the Borrower in consultation with the Administrative Agent or (z) in the case of any
Domestic Subsidiary acquired pursuant to a Permitted Acquisition or similar Investment financed with Indebtedness permitted to be
incurred hereunder as assumed Indebtedness (and such assumed Indebtedness is not incurred in contemplation of such Permitted
Acquisition or Investment) and any Domestic Subsidiary thereof that guarantees such Indebtedness, in each case to the extent, and
for so long as, such Indebtedness prohibits such Subsidiary from becoming a Guarantor,
(i) each Unrestricted Subsidiary, and
(j) with respect to any Swap Obligation, any Subsidiary that is not an “eligible contract participant” as defined in the
Commodity Exchange Act and the regulations thereunder.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all
or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or
any Guarantee thereof) is or
24
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 and the regulations thereunder at the time the Guarantee of such Guarantor or the
grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Administrative
Agent and the Borrower. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment
to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (i) Taxes imposed on or
measured by its overall net income or branch profits (however denominated, and including (for the avoidance of doubt) any backup
withholding in respect thereof under Section 3406 of the Code or any similar provision of state, local or foreign law), and franchise (and
similar) Taxes imposed on it (in lieu of net income Taxes), in each case by a jurisdiction (including any political subdivision thereof) as a
result of such recipient being organized in, having its principal office in, or in the case of any Lender, having its applicable Lending Office in,
such jurisdiction, or as a result of any other present or former connection with such jurisdiction (other than any such connection arising solely
from this Agreement or any other Loan Documents or any transactions contemplated thereunder), (ii) U.S. federal withholding Tax imposed
on any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document that is required to be
imposed on amounts payable to a Lender (other than to the extent such Lender is an assignee pursuant to a request by the Borrower under
Section 2.19(b) or 2.19(c)) pursuant to laws in force at the time such Lender becomes a party hereto (or designates a new Lending Office),
except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new Lending Office (or
assignment), to receive additional amounts from any Loan Party with respect to such withholding Tax pursuant to Section 2.17, (iii) any
withholding Tax that is attributable to such recipient’s failure to comply with Section 2.17(d), (e) or (h) or (iv) any Tax imposed under
FATCA.
“Existing Class Loans” shall have the meaning assigned to such term in Section 9.08(f).
“Existing Credit Agreement” shall mean that certain Credit Agreement dated as of October 1, 2019 (as amended, restated,
supplemented, replaced or otherwise modified from time to time, the “Existing Credit Agreement”), among the Borrower, the lenders party
thereto from time to time, Barclays Bank PLC, as administrative agent and collateral agent, and the other parties party thereto.
“Existing Roll-Over Letters of Credit” shall mean those letters of credit or bank guarantees issued and outstanding as of
the Closing Date and set forth on Schedule 1.01(C), which shall each be deemed to constitute a Letter of Credit issued hereunder on the
Closing Date.
“Extended Revolving Facility Commitment” shall have the meaning assigned to such term in Section 2.21(e).
“Extended Revolving Loan” shall have the meaning assigned to such term in Section 2.21(e).
“Extended Term Loan” shall have the meaning assigned to such term in Section 2.21(e).
“Extending Lender” shall have the meaning assigned to such term in Section 2.21(e).
“Extension” shall have the meaning assigned to such term in Section 2.21(e).
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“Facility” shall mean the respective facility and commitments utilized in making Loans and credit extensions hereunder, it
being understood that, as of the Closing Date there are two Facilities (i.e., the Term A Facility and the Revolving Facility Commitments
established on the Closing Date and the extensions of credit thereunder) and thereafter, the term “Facility” may include any other Class of
Commitments and the extensions of credit thereunder.
“FATCA” shall mean 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), or any Treasury Regulations
promulgated thereunder or official administrative interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of
the Code as of the date of this Agreement (or any amended or successor version described above) and any intergovernmental agreements (or
related rules, legislation or official administrative guidance) implementing the foregoing.
“Federal Funds Effective Rate” shall mean, 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 Effective Rate for any day is less than 0.00%Floor per
annum, the Federal Funds Effective Rate for such day will be deemed to be 0.00%Floor per annum.
http://www.newyorkfed.org, or any successor source.
“Federal Reserve Bank of New York’s Website” meansshall mean the website of the Federal Reserve Bank of New York at
Fees.
“Fees” shall mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank Fees and the Administrative Agent
“Financial Covenants” shall mean the covenants of the Borrower set forth in Section 6.11.
accounting officer, Treasurer, Assistant Treasurer or Controller of such person.
“Financial Officer” of any person shall mean the Chief Financial Officer or an equivalent financial officer, principal
“FIRREA” shall mean the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended.
“First Lien/First Lien Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of Exhibit
G hereto, or such other customary form reasonably acceptable to the Administrative Agent and the Borrower, in each case, as such document
may be amended, restated, supplemented or otherwise modified from time to time.
“First Lien/Second Lien Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of
Exhibit H hereto, or such other customary form reasonably acceptable to the Administrative Agent and the Borrower, in each case, as such
document may be amended, restated, supplemented or otherwise modified from time to time.
“Flood Documentation” shall mean, with respect to each Mortgaged Property located in the United States of America or
any territory thereof, (i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination (and to the
extent a Mortgaged Property is located in a Special Flood Hazard Area, a notice about Special Flood Hazard Area status and flood disaster
assistance duly executed by the Borrower and the applicable Loan Party relating thereto) and (ii) evidence of flood insurance as required by
Section 5.02(c) hereof and the applicable provisions of the Security
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Documents, each of which shall (A) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or
mortgagee endorsement (as applicable), (B) name the Collateral Agent, on behalf of the Secured Parties, as additional insured and loss
payee/mortgagee, (C) identify the address of each property located in a Special Flood Hazard Area, the applicable flood zone designation and
the flood insurance coverage and deductible relating thereto and (D) be otherwise in form and substance reasonably satisfactory to the
Administrative Agent.
“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act of 1994 (which
comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in
effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute
thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Floor” shall mean a rate of interest equal to 0.00%.
“Foreign Lender” shall mean any Lender (a) that is not disregarded as separate from its owner for U.S. federal income tax
purposes and that is not a “United States person” as defined by Section 7701(a)(30) of the Code or (b) that is disregarded as separate from its
owner for U.S. federal income tax purposes and whose regarded owner is not a “United States person” as defined in Section 7701(a)(30) of
the Code.
than the United States of America, any state thereof or the District of Columbia.
“Foreign Subsidiary” shall mean any Subsidiary that is incorporated or organized under the laws of any jurisdiction other
“FRB” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, with respect to any Issuing Bank, such
Defaulting Lender’s Revolving Facility Percentage of Revolving L/C Exposure with respect to Letters of Credit issued by such Issuing Bank
other than such Revolving L/C Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders
or Cash Collateralized in accordance with the terms hereof.
Subsidiaries that are CFCs and/or of one or more FSHCOs.
“FSHCO” shall mean any Subsidiary that owns no material assets other than the Equity Interests of one or more Foreign
“GAAP” shall mean generally accepted accounting principles in effect from time to time in the United States of America,
applied on a consistent basis, subject to the provisions of Section 1.02; provided, that any reference to the application of GAAP in Sections
3.13(b), 3.20, 5.03, 5.07 and 6.02(e) to a Foreign Subsidiary (and not as a consolidated Subsidiary of the Borrower) shall mean generally
accepted accounting principles in effect from time to time in the jurisdiction of organization of such Foreign Subsidiary.
instrumentality or regulatory or legislative body.
“Governmental Authority” shall mean any federal, state, local or foreign court or governmental agency, authority,
“Guarantee” of or by any person (the “guarantor”) shall mean (a) any obligation, contingent or otherwise, of the guarantor
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 the guarantor, direct or indirect,
(i)
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to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to
maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the holders
of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part),
or (b) any Lien (other than any Lien under Section 6.02(y)) on any assets of the guarantor securing any Indebtedness or other obligation (or
any existing right, contingent or otherwise, of the holder of Indebtedness or other obligation to be secured by such a Lien) of any other
person, whether or not such Indebtedness or other obligation is assumed by the guarantor; provided, however, that the term “Guarantee” shall
not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity
obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted by 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 Indebtedness 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 such person in good faith.
“guarantor” shall have the meaning assigned to such term in the definition of the term “Guarantee.”
“Guarantors” shall mean the Loan Parties other than the Borrower.
“Hazardous Materials” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents,
including, without limitation, explosive or radioactive substances or petroleum by products or petroleum distillates, asbestos or asbestos-
containing materials, polychlorinated biphenyls, radon gas or pesticides, fungicides, fertilizers or other agricultural chemicals, of any nature
subject to regulation or which can give rise to liability under any Environmental Law.
“Hedge Bank” shall mean any person that is (or an Affiliate thereof is) an Agent, an Arranger or a Lender on the Closing
Date (or any person that becomes an Agent, Arranger or Lender or Affiliate thereof after the Closing Date) and that enters into a Hedging
Agreement, in each case, in its capacity as a party to such Hedging Agreement. For the avoidance of doubt, any Hedge Bank shall continue to
be a Hedge Bank with respect to the applicable Hedging Agreement even if it ceases to be an Agent, Arranger, Lender or Affiliate thereof
after the Closing Date.
“Hedging Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction, or
option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or credit spread transaction,
repurchase transaction, reserve repurchase transaction, securities lending transaction, weather index transaction, spot contracts, fixed price
physical delivery contracts, or any similar transaction or any combination of these transactions, in each case of the foregoing, whether or not
exchange traded; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or any of the Subsidiaries and no Permitted Call Spread Agreement shall
be a Hedging Agreement.
“Immaterial Subsidiary” shall mean any Subsidiary that (a) did not, as of the last day of the fiscal quarter of the Borrower
most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 4.02(e), 5.04(a) or
5.04(b), have assets with a value in excess of 5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total
revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date, and (b) taken together with all
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Immaterial Subsidiaries as of such date, did not have assets with a value in excess of 10% of Consolidated Total Assets or revenues
representing in excess of 10% of total revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date; provided, that
the Borrower may elect in its sole discretion to exclude as an Immaterial Subsidiary any Subsidiary that would otherwise meet the definition
thereof. For the avoidance of doubt, as of the Closing Date, the Subsidiaries of the Borrower identified on Schedule 1.01(B) constitute
Immaterial Subsidiaries pursuant to the foregoing sentence.
“Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with
any accrual of interest, the accretion of accreted value, the amortization of original issue discount or deferred financing fees, the payment of
interest or dividends in the form of additional Indebtedness or in the form of Equity Interests, as applicable, the accretion of original issue
discount, deferred financing fees or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of
fluctuations in the exchange rate of currencies.
be incurred utilizing this definition (or, at the option of the Borrower, at the time of incurrence of such Indebtedness), the sum of:
“Incremental Amount” shall mean, at the time of the establishment of the commitments in respect of the Indebtedness to
(i)
the excess (if any) of (a) $50,000,000 over (b) the aggregate outstanding principal amount of all Incremental Term
Loans and Incremental Revolving Facility Commitments, in each case, incurred or established after the Closing Date pursuant to
Section 2.21 utilizing this clause (i) (other than Incremental Term Loans and Incremental Revolving Facility Commitments in
respect of Refinancing Term Loans, Extended Term Loans, Extended Revolving Facility Commitments or Replacement Revolving
Facility Commitments, respectively); plus
(ii) any amounts so long as immediately after giving effect to the incurrence thereof utilizing this clause (ii) (and
assuming any Incremental Revolving Facility Commitments being established at such time utilizing this clause (ii) are fully drawn
unless such commitments have been drawn or have otherwise been terminated) and the use of proceeds of the loans thereunder, the
Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 2.75 to 1.00; provided that, for purposes of this clause (ii), net
cash proceeds funded by financing sources upon the incurrence of Incremental Loans incurred at such time of calculation shall not
be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Net Secured Leverage Ratio at
such time.
“Incremental Assumption Agreement” shall mean an Incremental Assumption Agreement in form and substance
reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and, if applicable, one or more
Incremental Term Lenders.
Commitment.
“Incremental Commitment” shall mean an Incremental Term Loan Commitment or an Incremental Revolving Facility
“Incremental Loan” shall mean an Incremental Term Loan.
“Incremental Revolving Borrowing” shall mean a Borrowing comprised of Incremental Revolving Loans.
2.21, to make Incremental Revolving Loans to the Borrower.
“Incremental Revolving Facility Commitment” shall mean the commitment of any Lender, established pursuant to Section
outstanding Incremental Revolving Loan.
“Incremental Revolving Facility Lender” shall mean a Lender with an Incremental Revolving Facility Commitment or an
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“Incremental Revolving Loan” shall mean (i) Revolving Facility Loans made by one or more Revolving Facility Lenders
to the Borrower pursuant to an Incremental Revolving Facility Commitment to make additional Initial Revolving Loans and (ii) to the extent
permitted by Section 2.21 and provided for in the relevant Incremental Assumption Agreement, Extended Revolving Loans or Replacement
Revolving Loans, or (iii) any of the foregoing.
“Incremental Term Borrowing” shall mean a Borrowing comprised of Incremental Term Loans.
Loans made thereunder.
“Incremental Term Facility” shall mean any Class of Incremental Term Loan Commitments and the Incremental Term
Incremental Term Loan.
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment or an outstanding
make Incremental Term Loans to the Borrower.
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to Section 2.21, to
pursuant to an Incremental Assumption Agreement, the meaning assigned to such term in Section 2.10(a)(ii).
“Incremental Term Loan Installment Date” shall have, with respect to any Class of Incremental Term Loans established
“Incremental Term Loans” shall mean (i) Term Loans made by one or more Lenders to the Borrower pursuant to Section
2.01(c) consisting of additional Term A Loans and (ii) to the extent permitted by Section 2.21 and provided for in the relevant Incremental
Assumption Agreement, Other Term Loans (including in the form of Extended Term Loans or Refinancing Term Loans, as applicable), or
(iii) any of the foregoing.
“Indebtedness” of any person shall mean, if and to the extent (other than with respect to clauses (i) and (j)) the same would
constitute indebtedness or a liability on a balance sheet prepared in accordance with GAAP, without duplication, (a) all obligations of such
person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person,
(d) all obligations of such person issued or assumed as the deferred purchase price of property or services (other than such obligations
accrued in the ordinary course of business or consistent with past practice), to the extent that the same would be required to be shown as a
long term liability on a balance sheet prepared in accordance with GAAP, (e) all Capitalized Lease Obligations of such person, (f) all net
payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being
determined, in respect of outstanding Hedging Agreements, (g) the principal component of all obligations, contingent or otherwise, of such
person as an account party in respect of letters of credit, (h) the principal component of all obligations of such person in respect of bankers’
acceptances, (i) in respect of any monetary obligations relating to Sale and Lease-back Transactions, the capitalized amount of the remaining
lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such
person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized
Lease Obligation, (j) all Guarantees by such person of Indebtedness described in clauses (a) through (h) above and (k) the amount of all
obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued
dividends that have not increased the liquidation preference of such Disqualified Stock); provided, that Indebtedness shall not include (A)
trade and other ordinary-course payables, accrued expenses, and intercompany liabilities arising in the ordinary course of business or
consistent with past practice, (B) prepaid or deferred revenue, (C) purchase price holdbacks arising in the ordinary course of business or
consistent with past practice in respect
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of a portion of the purchase prices of an asset to satisfy unperformed obligations of the seller of such asset, (D) Obligations under or in
respect of Permitted Securitization Financings, (E) earn-out obligations until such obligations become a liability on the balance sheet of such
person in accordance with GAAP, (F) obligations in respect of Third Party Funds, (G) in the case of the Borrower and its Subsidiaries, (I) all
intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary
course of business or consistent with past practice and (II) intercompany liabilities in connection with the cash management, tax and
accounting operations of the Borrower and the Subsidiaries or (H) liabilities in respect of membership deposits. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument
or agreement evidencing such Indebtedness limits the liability of such person in respect thereof. For the avoidance of doubt, payment
obligations under the Tax Matters Agreement shall not constitute Indebtedness.
obligation of any Loan Party hereunder or under any other Loan Document other than (a) Excluded Taxes and (b) Other Taxes.
“Indemnified Taxes” shall mean all Taxes imposed on or with respect to any payment made by or on account of any
“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).
“Information” shall have the meaning assigned to such term in Section 3.14(a).
“Initial Revolving Loan” shall mean a Revolving Facility Loan made (i) pursuant to the Revolving Facility Commitments
in effect on the Closing Date (as the same may be amended from time to time in accordance with this Agreement) or (ii) pursuant to any
Incremental Revolving Facility Commitment on the same terms as the Revolving Facility Loans referred to in clause (i) of this definition.
“Intellectual Property” shall have the meaning assigned to such term in the Collateral Agreement.
“Intercreditor Agreement” shall have the meaning assigned to such term in Section 8.11.
Section 2.07 and substantially in the form of Exhibit E or another form approved by the Administrative Agent.
“Interest Election Request” shall mean a request by the Borrower to convert or continue a Borrowing in accordance with
“Interest Expense” shall mean, with respect to any person for any period, the sum of (a) gross interest expense of such
person for such period on a consolidated basis, including the portion of any payments or accruals with respect to Capitalized Lease
Obligations allocable to interest expense and excluding interest expense relating to membership deposit liabilities, amortization of deferred
financing fees and original issue discount, debt issuance costs, commissions, fees and expenses, expensing of any bridge, commitment or
other financing fees, amortization of non-cash interest resulting from the application of Accounting Standards Codification 470-20, Debt (but
only to the extent of the information therein that was codified from Financial Accounting Standards Board Staff Position No. APB 14-1—
Accounting for Convertible Debt Instruments That May Be Settled in Cash upon Conversion (Including Partial Cash Settlement) or related
interpretations or guidance) to any convertible debt of the Borrower, and non-cash interest expense attributable to movement in mark to
market of obligations in respect of Hedging Agreements or other derivatives (in each case permitted hereunder) under GAAP and (b)
capitalized interest of such person, minus interest income for such period. For purposes of the foregoing, gross interest expense shall be
determined after giving effect to any net payments made or received and costs incurred by the Borrower and the Subsidiaries with respect to
Hedging Agreements, and interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by
the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
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“Interest Payment Date” shall mean, (a) with respect to any EurocurrencySOFR Loan, (i) the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part, (ii) in the case of a EurocurrencySOFR Borrowing with an Interest Period of more
than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’
duration been applicable to such Borrowing and (iii) in addition, the date of any refinancing or conversion of such Borrowing with or to a
Borrowing of a different Type and (b) with respect to any ABR Loan, the last Business Day of each calendar quarter.
“Interest Period” shall mean, as to any EurocurrencySOFR Borrowing, the period commencing on the date of such
Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the
numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter (or 12 months or a period shorter than 1 month, if at the time of the relevant Borrowing, all relevant Lenders make interest
periods of such length available),, as the Borrower may elect; provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day of such Interest Period.
“Interpolated Rate” shall mean, in relation to the LIBO Rate, the rate which results from interpolating on a linear basis
between (a) the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of
that Loan; and (b) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period
of that Loan, each as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest
Period of that Loan.
“Investment” shall have the meaning assigned to such term in Section 6.04.
“IRS” shall mean the U.S. Internal Revenue Service.
“Issuing Bank” shall mean (i) each Revolving Facility Lender, (ii) for purposes of the Existing Roll-Over Letters of Credit,
the Issuing Bank set forth on Schedule 1.01(C) and (iii) each other Issuing Bank designated pursuant to Section 2.05(l), in each case in its
capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity. An Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by any domestic or foreign branch or Affiliate of such Issuing Bank, in which case the term
“Issuing Bank” shall include any such branch or Affiliate with respect to Letters of Credit issued by such branch or Affiliate.
“Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.12(b).
“Joint Bookrunners” shall mean Wells Fargo Securities, LLC and SunTrust Robinson Humphrey, Inc.
“Judgment Currency” shall have the meaning assigned to such term in Section 9.19.
payment to the Loan Obligations.
“Junior Financing” shall mean any Indebtedness (other than intercompany Indebtedness) that is subordinated in right of
“Junior Liens” shall mean Liens on the Collateral that are junior to the Liens thereon securing the Term A Loans (and
other Loan Obligations that are secured by Liens on the Collateral that rank pari passu with the Liens thereon securing the Term A Loans)
pursuant to a Permitted Junior
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Intercreditor Agreement (it being understood that Junior Liens are not required to be pari passu with other Junior Liens, and that Indebtedness
secured by Junior Liens may have Liens that are senior in priority to, or pari passu with, or junior in priority to, other Liens constituting
Junior Liens).
“L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“L/C Participation Fee” shall have the meaning assigned to such term in Section 2.12(b).
and the latest Term Facility Maturity Date, in each case then in effect on such date of determination.
“Latest Maturity Date” shall mean, at any date of determination, the latest of the latest Revolving Facility Maturity Date
“LCT Election” shall have the meaning provided in Section 1.09.
“LCT Test Date” shall have the meaning provided in Section 1.09.
“Lender” shall mean each financial institution listed on Schedule 2.01 (other than any such person that has ceased to be a
party hereto pursuant to an Assignment and Acceptance in accordance with Section 9.04), as well as any person that becomes a “Lender”
hereunder pursuant to Section 9.04 or Section 2.21.
such Lender to make Loans.
“Lending Office” shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by
“Letter of Credit” shall mean any letter of credit or bank guarantee issued pursuant to Section 2.05, including any
Alternate Currency Letter of Credit. Each Existing Roll-Over Letter of Credit shall be deemed to constitute a Letter of Credit issued
hereunder on the Closing Date for all purposes of the Loan Documents.
issue Letters of Credit pursuant to Section 2.05.
“Letter of Credit Commitment” shall mean, with respect to each Issuing Bank, the commitment of such Issuing Bank to
“Letter of Credit Sublimit” shall mean the aggregate Letter of Credit Commitments of the Issuing Banks, in an aggregate
amount not to exceed $15,000,000 (calculated, in the case of Alternate Currency Letters of Credit, based on the Dollar Equivalent thereof) or
such larger amount not to exceed the Revolving Facility Commitment as the Administrative Agent and the applicable Issuing Bank may
agree.
require.
“LIBO Rate” shall mean the US LIBO Rate, the EURIBO Rate or the Alternate Currency LIBO Rate, as the context may
“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security
interest or similar monetary encumbrance in or on such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing)
relating to such asset; provided, that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.
“Limited Condition Transaction” shall mean (a) any acquisition by the Borrower or one or more of the Subsidiaries of any
assets, business or person or an Investment by the Borrower or one or more of the Subsidiaries, in each case, permitted to be made under this
Agreement and whose consummation is not conditioned on the availability of, or on obtaining, third party financing or (b) any redemption,
33
satisfaction and discharge or repayment of Junior Financing or preferred stock requiring irrevocable notice in advance of such redemption
satisfaction and discharge or repayment.
“Liquidity” shall mean the sum of, in each case, as of the testing date of such Liquidity Financial Covenant, (i) any
unrestricted cash or cash equivalents of the Borrower and its Subsidiaries and (ii) the aggregate principal amount of Revolving Facility
Commitments (less the aggregate principal amount of (a) Revolving Facility Loans and (b) outstanding Letters of Credit).
“Liquidity Financial Covenant” shall have the meaning provided in Section 6.11(c).
“Loan Documents” shall mean (i) this Agreement, (ii) the Subsidiary Guarantee Agreement, (iii) the Security Documents,
(iv) each Incremental Assumption Agreement, (v) any Intercreditor Agreement, (vi) any Note issued under Section 2.09(e), (vii) the Letters
of Credit, (viii) Amendment No. 1 and, (ix) Amendment No. 2 and (x) solely for the purposes of Sections 4.02 and 7.01 hereof, the
Engagement Letter.
“Loan Obligations” shall mean (a) the due and punctual payment by the Borrower of (i) the unpaid principal of and
interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans made to the Borrower under this Agreement, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower
under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements,
interest thereon (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) and obligations to provide Cash Collateral and (iii) all other monetary
obligations of the Borrower owed under or pursuant to this Agreement and each other Loan Document, including obligations to pay fees,
expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), and (b) the due and punctual payment of all obligations of each other Loan
Party under or pursuant to each of the Loan Documents.
“Loan Parties” shall mean the Borrower and the Subsidiary Loan Parties.
“Loans” shall mean the Term Loans and the Revolving Facility Loans.
Alternate Currency Loan, “Local Time” shall mean the local time of the applicable Lending Office.
“Local Time” shall mean New York City time (daylight or standard, as applicable); provided that, with respect to any
“Majority Lenders” of any Facility shall mean, at any time, Lenders under such Facility having Loans and unused
Commitments representing more than 50% of the sum of all Loans outstanding under such Facility and unused Commitments under such
Facility at such time (subject to the last paragraph of Section 9.08(b)); provided, however, that if, at such time of determination, there are two
(2) or more Lenders under such Facility, then Majority Lenders shall require at least two (2) of such Lenders (with Lenders that are Affiliates
or Approved Funds of one another being considered as one (1) Lender for purposes of this proviso).
“Margin Stock” shall have the meaning assigned to such term in Regulation U.
34
“Material Adverse Effect” shall mean (a) a material adverse effect on the business, property, operations or financial
condition of the Borrower and its Subsidiaries, taken as a whole, or (b) a material adverse effect on the validity or enforceability of any of the
Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder; provided that, in the case of clause (a)
above, the effects of the novel coronavirus COVID-19 pandemic as of the Closing Date, or any effect reasonably expected to arise therefrom
as of the Closing Date, shall not constitute, result or otherwise have a Material Adverse Effect.
“Material Indebtedness” shall mean Indebtedness for borrowed money (other than intercompany Indebtedness, Loans and
Letters of Credit) of any one or more of the Borrower or any Subsidiary in an aggregate principal amount exceeding $30,000,000; provided
that in no event shall any Permitted Securitization Financing be considered Material Indebtedness.
“Material Real Property” shall mean any parcel or parcels of Real Property located in the United States now or hereafter
owned in fee by the Borrower or any Subsidiary Loan Party and having a fair market value (on a per-property basis) of at least $15,000,000
as of (x) the Closing Date, for Real Property owned on the Closing Date or (y) the date of acquisition, for Real Property acquired after the
Closing Date, in each case as determined by the Borrower in good faith; provided, that “Material Real Property” shall not include any Real
Property in respect of which the Borrower or a Subsidiary Loan Party does not own the land in fee simple.
“Material Subsidiary” shall mean any Subsidiary other than an Immaterial Subsidiary.
“Maximum Rate” shall have the meaning assigned to such term in Section 9.09.
“Minimum L/C Collateral Amount” shall mean, at any time, in connection with any Letter of Credit, (i) with respect to
Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Revolving L/C Exposure with respect to such
Letter of Credit at such time and (ii) otherwise, an amount sufficient to provide credit support with respect to such Revolving L/C Exposure
as determined by the Administrative Agent and the Issuing Banks in their sole discretion.
“Moody’s” shall mean Moody’s Investors Service, Inc. and its successors and assigns.
Property encumbered by a Mortgage after the Closing Date pursuant to Section 5.10.
“Mortgaged Properties” shall mean, collectively, (i) the Closing Date Mortgaged Properties and (ii) any Material Real
“Mortgages” shall mean, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of
leases and rents, and other security documents (including amendments to any of the foregoing) delivered with respect to the Mortgaged
Properties, each substantially in the form of Exhibit K (with such changes to account for local law matters) or otherwise in a form reasonably
acceptable to the Borrower and the Administrative Agent, as amended, supplemented or otherwise modified from time to time, including all
such changes as may be required to account for local law matters.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower
or any Subsidiary or any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an
obligation to make contributions.
GAAP and before any reduction in respect of preferred stock dividends.
“Net Income” shall mean, with respect to any person, the net income (loss) of such person, determined in accordance with
35
“Net Proceeds” shall mean:
(a) 100% of the cash proceeds actually received by the Borrower or any Subsidiary (including any cash payments
received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received)
from any Asset Sale under Section 6.05(g) (or Sale and Lease-Back Transactions under Section 6.03(b)(x)), net of (i) attorneys’
fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges,
transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the
applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan
Documents) on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in
connection therewith, (ii) Taxes paid or payable (in the good faith determination of the Borrower) as a result thereof (including the
amount of any distributions in respect thereof pursuant to Section 6.06(b)(iii) or Section 6.06(b)(v)), (iii) the amount of any
reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any
taxes deducted pursuant to clause (i) or (ii) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any
of the Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with such transaction (however, the amount of any
subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be
cash proceeds of such Asset Sale occurring on the date of such reduction) and (iv) payments made on a ratable basis (or less than
ratable basis) to holders of non-controlling interests in non-Wholly Owned Subsidiaries as a result of such Asset Sale; provided,
that, if the Borrower shall deliver a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly
following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds, within 18 months
of such receipt, to acquire, maintain, develop, construct, improve, upgrade or repair assets used or useful in the business of the
Borrower and the Subsidiaries or to make Permitted Acquisitions and other Investments permitted hereunder (excluding Permitted
Investments or intercompany Investments in Subsidiaries) or to reimburse the cost of any of the foregoing incurred on or after the
date on which the Asset Sale giving rise to such proceeds was contractually committed, such portion of such proceeds shall not
constitute Net Proceeds except to the extent not, within 18 months of such receipt, so used or contractually committed to be so used
(it being understood that if any portion of such proceeds are not so used within such 18 month period but within such 18 month
period are contractually committed to be used, then such remaining portion if not so used within six months following the end of
such 18 month period shall constitute Net Proceeds as of such date without giving effect to this proviso); provided, further, that (x)
no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions
shall constitute Net Proceeds unless such net cash proceeds shall exceed $10,000,000 (and thereafter only net cash proceeds in
excess of such amount shall constitute Net Proceeds) and (y) no net cash proceeds calculated in accordance with the foregoing shall
constitute Net Proceeds in any fiscal year until the aggregate amount of all such net cash proceeds otherwise constituting Net
Proceeds pursuant to the foregoing clause (x) in such fiscal year shall exceed $30,000,000 (and thereafter only net cash proceeds in
excess of such amount shall constitute Net Proceeds); and
(b) 100% of the cash proceeds from the incurrence, issuance or sale by the Borrower or any Subsidiary Loan Party of any
Indebtedness (other than Excluded Indebtedness), net of all taxes and fees (including investment banking fees), commissions, costs
and other expenses, in each case incurred in connection with such incurrence, issuance or sale.
36
“Net Secured Leverage Ratio” shall mean, on any date, the ratio of (A) (i) without duplication, the aggregate principal
amount of any Consolidated Debt of the Borrower and its Subsidiaries outstanding as of the last day of such Test Period that is then secured
by Liens on any assets or property of the Borrower or any of its Subsidiaries less (ii) without duplication, up to $50,000,000 of Unrestricted
Cash and unrestricted Permitted Investments of the Borrower and its Subsidiaries as of the last day of such Test Period, to (B) EBITDA for
such Test Period, all determined on a consolidated basis in accordance with GAAP; provided, that the Net Secured Leverage Ratio shall be
determined for the relevant Test Period on a Pro Forma Basis.
its Convertible Securities for conversion consisting of Equity Interests, cash or a combination of cash and Equity Interests.
“Net Share Settlement” shall mean any settlement received by any holder of Convertible Securities upon any surrender of
“Net Total Leverage Ratio” shall mean, on any date, the ratio of (A) (i) without duplication, the aggregate principal
amount of any Consolidated Debt of the Borrower and its Subsidiaries outstanding as of the last day of the Test Period most recently ended as
of such date less (ii) without duplication, up to $50,000,000 of Unrestricted Cash and unrestricted Permitted Investments of the Borrower and
its Subsidiaries as of the last day of such Test Period, to (B) EBITDA for such Test Period, all determined on a consolidated basis in
accordance with GAAP; provided, that the Net Total Leverage Ratio shall be determined for the relevant Test Period on a Pro Forma Basis.
“New Class Loans” shall have the meaning assigned to such term in Section 9.08(f).
“New Parent” shall have the meaning assigned to such term in the definition of the term “Change in Control”.
“New Project” shall mean (x) each plant, facility, branch, office or business unit which is either a new plant, facility,
branch, office or business unit, or an expansion, relocation, remodeling, refurbishment or substantial modernization of an existing plant,
facility, branch, office or business unit owned by the Borrower or the Subsidiaries which in fact commences operations and (y) each creation
(in one or a series of related transactions) of a business unit, product line or service offering to the extent such business unit commences
operations or such product line or service is offered or each expansion (in one or a series of related transactions) of business into a new
market or through a new distribution method or channel.
“Non-Bank Tax Certificate” shall have the meaning assigned to such term in Section 2.17(e)(i).
“Non-Consenting Lender” shall have the meaning assigned to such term in Section 2.19(c).
“Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.
“Note” shall have the meaning assigned to such term in Section 2.09(e).
Management Agreement and (c) obligations in respect of any Secured Hedge Agreement.
“Obligations” shall mean, collectively, (a) the Loan Obligations, (b) obligations in respect of any Secured Cash
“OFAC” shall have the meaning provided in Section 3.25(b).
“Other First Lien Debt” shall mean obligations secured by Other First Liens.
37
“Other First Liens” shall mean Liens on the Collateral that are pari passu with the Liens thereon securing the Term A
Loans (and other Loan Obligations that are secured by Liens on the Collateral that are pari passu with the Liens thereon securing the Term A
Loans) pursuant to a Permitted Pari Passu Intercreditor Agreement.
“Other Taxes” shall mean any and all present or future stamp or documentary Taxes or any other excise, transfer, sales,
property, intangible, mortgage recording or similar Taxes arising from any payment made hereunder or under any other Loan Document or
from the execution, registration, delivery or enforcement of, consummation or administration of, from the receipt or perfection of security
interest under, or otherwise with respect to, the Loan Documents (but excluding any Excluded Taxes).
Term Loans or Refinancing Term Loans, as applicable).
“Other Term Loans” shall have the meaning assigned to such term in Section 2.21(a) (including in the form of Extended
determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
“Overnight Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate
“Parent Entity” shall mean any direct or indirect parent of the Borrower.
“Partially Disposed Subsidiary” shall have the meaning assigned to such term in Section 9.18(b).
“Participant” shall have the meaning assigned to such term in Section 9.04(d)(i).
“Participant Register” shall have the meaning assigned to such term in Section 9.04(d)(ii).
“Participating Member State” shall mean each state so described in any EMU Legislation.
“Payment Recipient” has the meaning assigned thereto in Section 8.15(a).
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Perfection Certificate” shall mean the Perfection Certificate with respect to the Borrower and the other Loan Parties in a
form reasonably satisfactory to the Administrative Agent, as the same may be supplemented from time to time to the extent required by
Section 5.04(f).
“Permitted Acquisition” shall mean any acquisition of all or substantially all the assets of, or all or substantially all the
Equity Interests (other than directors’ qualifying shares) not previously held by the Borrower and its Subsidiaries in, or merger, consolidation
or amalgamation with, a person or division or line of business of a person (or any subsequent investment made in a person or division or line
of business previously acquired in a Permitted Acquisition), if immediately after giving effect thereto: (i) no Event of Default under clause
(b), (c), (h) or (i) of Section 7.01 shall have occurred and be continuing or would result therefrom, provided, however, that with respect to a
proposed acquisition pursuant to an executed acquisition agreement, at the option of the Borrower, the determination of whether such an
Event of Default shall exist shall be made solely at the time of the execution of the acquisition agreement related to such Permitted
Acquisition; (ii) with respect to any such acquisition or investment with cash consideration in excess of $25,000,000, the Borrower shall be in
Pro Forma Compliance immediately after giving effect to such acquisition or investment and any related transaction; (iii) any acquired or
newly formed Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by Section 6.01; and (iv) to the extent
required by Section 5.10, any person acquired in such acquisition, if acquired by the Borrower or a
38
Domestic Subsidiary, shall be merged into the Borrower or a Subsidiary Loan Party or become upon consummation of such acquisition a
Subsidiary Loan Party.
“Permitted Call Spread Agreements” shall mean (a) any contract (including, but not limited to, any convertible bond hedge
or capped call transaction) pursuant to which, among other things, the Borrower acquires an option requiring the counterparty thereto to
deliver to the Borrower shares of common stock of the Borrower, cash in lieu of delivering shares of common stock or cash representing the
termination value of such option or a combination thereof from time to time upon exercise or early termination of such option and (b) any
contract pursuant to which, among other things, the Borrower issues to the counterparty thereto warrants to acquire shares of common stock
of the Borrower, the cash value of such shares or a combination thereof upon exercise of such warrants, in each case entered into by the
Borrower in connection with the issuance of Convertible Securities (including, without limitation, the exercise of any over-allotment or
underwriter’s option); provided that the terms, conditions and covenants of such contract are customary for contracts of such type (as
determined by the Borrower in good faith).
“Permitted Investments” shall mean:
(a) direct obligations of the United States of America or any member of the European Union or any agency thereof or
obligations guaranteed by the United States of America or any member of the European Union or any agency thereof, in each case
with maturities not exceeding two years from the date of acquisition thereof;
(b)
time deposit accounts, certificates of deposit, money market deposits, banker’s acceptances and other bank deposits
maturing within 180 days of the date of acquisition thereof issued by a bank or trust company that is organized under the laws of the
United States of America, any state thereof or any foreign country recognized by the United States of America having capital,
surplus and undivided profits in excess of $250,000,000 and whose long-term debt, or whose parent holding company’s long-term
debt, is rated A (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as
defined in Rule 436 under the Securities Act));
(c) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in
clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;
(d) commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than
an Affiliate of the Borrower) organized and in existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of which any investment therein is made of P 1 (or higher)
according to Moody’s, F 1 (or higher) according to Fitch, or A 1 (or higher) according to S&P (or such similar equivalent rating or
higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));
(e) securities with maturities of two years or less from the date of acquisition, issued or fully guaranteed by any State,
commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at
least A by S&P, A by Moody’s or A by Fitch (or such similar equivalent rating or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities Act));
(f) shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the
provisions of clauses (a) through (e) above;
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(g) money market funds that (i) comply with the criteria set forth in Rule 2a 7 under the Investment Company Act of
1940, (ii) are rated by any two of (1) AAA by S&P, (2) Aaa by Moody’s or (3) AAA by Fitch and (iii) have portfolio assets of at
least $5,000,000,000;
(h)
time deposit accounts, certificates of deposit, money market deposits, banker’s acceptances and other bank deposits;
(i)
[reserved];
(j)
instruments equivalent to those referred to in clauses (a) through (i) above denominated in any foreign currency
comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management
purposes in any jurisdiction outside the United States of America to the extent reasonably required in connection with any business
conducted by any Subsidiary organized in such jurisdiction; and
(k) Investments that are consistent with the investment policy of the Borrower, as it may be amended from time to time,
that has been adopted by the board of directors (or committee thereof) of the Borrower and approved by the Administrative Agent.
“Permitted Junior Intercreditor Agreement” shall mean, with respect to any Liens on Collateral that are intended to be
junior to the Liens on the Collateral securing the Term A Loans (and other Loan Obligations that are secured by Liens on the Collateral that
are pari passu with the Liens thereon securing the Term A Loans), either (as the Borrower shall elect) (x) the First Lien/Second Lien
Intercreditor Agreement if such Liens secure “Second Lien Obligations” (as defined therein), (y) another intercreditor agreement not
materially less favorable to the Lenders vis-à-vis such junior Liens than the First Lien/Second Lien Intercreditor Agreement (as determined
by the Borrower in good faith) or (z) another intercreditor agreement the terms of which are consistent with market terms governing security
arrangements for the sharing of liens on a junior basis at the time such intercreditor agreement is proposed to be established in light of the
type of Indebtedness to be secured by such liens, as determined by the Administrative Agent and the Borrower in the exercise of reasonable
judgment.
“Permitted Liens” shall have the meaning assigned to such term in Section 6.02.
“Permitted Pari Passu Intercreditor Agreement” shall mean, with respect to any Liens on Collateral that are intended to be
pari passu with the Liens on the Collateral securing the Term A Loans (and other Loan Obligations that are secured by Liens on the Collateral
that are pari passu with the Liens thereon securing the Term A Loans), either (as the Borrower shall elect) (x) the First Lien/First Lien
Intercreditor Agreement, (y) another intercreditor agreement not materially less favorable to the Lenders vis-à-vis such pari passu Liens than
the First Lien/First Lien Intercreditor Agreement (as determined by the Borrower in good faith) or (z) another intercreditor agreement the
terms of which are consistent with market terms governing security arrangements for the sharing of liens on a pari passu basis at the time
such intercreditor agreement is proposed to be established in light of the type of Indebtedness to be secured by such liens, as determined by
the Administrative Agent and the Borrower in the exercise of reasonable judgment.
“Permitted Refinancing Indebtedness” shall mean any Indebtedness issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness (or unutilized commitments in
respect of Indebtedness (only to the extent the committed amount (i) could have been incurred on the date of the initial incurrence and was
deemed incurred at such time for purposes of this definition or (ii) could have been incurred other than as Permitted Refinancing
Indebtedness on the date of such Refinancing)) being Refinanced (or previous refinancings thereof constituting Permitted Refinancing
Indebtedness); provided, that (a) the principal amount (or
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accreted value, if applicable) or, if greater, committed amount (only to the extent the committed amount (i) could have been incurred on the
date of the initial incurrence and was deemed incurred at such time for purposes of this definition or (ii) could have been incurred other than
as Permitted Refinancing Indebtedness on the date of such Refinancing) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) or, if greater, committed amount of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions, expenses
(including mortgage and similar taxes), plus an amount equal to any existing commitment unutilized thereunder and letters of credit undrawn
thereunder), (b) except with respect to Section 6.01(i), (i) the final maturity date of such Permitted Refinancing Indebtedness is on or after the
earlier of (x) the final maturity date of the Indebtedness being Refinanced and (y) the Latest Maturity Date in effect at the time of incurrence
thereof and (ii) the Weighted Average Life to Maturity of such Permitted Refinancing Indebtedness is greater than or equal to the lesser of (i)
the remaining Weighted Average Life to Maturity of the Indebtedness being Refinanced and (ii) the Weighted Average Life to Maturity of the
Class of Term Loans then outstanding with the greatest remaining Weighted Average Life to Maturity, (c) if the Indebtedness being
Refinanced is subordinated in right of payment to the Loan Obligations under this Agreement, such Permitted Refinancing Indebtedness shall
be subordinated in right of payment to such Loan Obligations on terms in the aggregate not materially less favorable to the Lenders as those
contained in the documentation governing the Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall have obligors
that are not (or would not have been) obligated with respect to the Indebtedness being so Refinanced (except that a Loan Party may be added
as an additional obligor) and (e) if the Indebtedness being Refinanced is secured by Liens on any Collateral (whether senior to, equally and
ratably with, or junior to the Liens on such Collateral securing the Loan Obligations or otherwise), such Permitted Refinancing Indebtedness
may be secured by such Collateral (including any Collateral pursuant to after-acquired property clauses to the extent any such Collateral
secured (or would have secured) the Indebtedness being Refinanced) on terms in the aggregate that are substantially similar to, or not
materially less favorable to the Secured Parties than, the Indebtedness being Refinanced or on terms otherwise permitted by Section 6.02.
governing a Permitted Securitization Financing.
“Permitted Securitization Documents” shall mean all documents and agreements evidencing, relating to or otherwise
“Permitted Securitization Financing” shall mean one or more transactions pursuant to which (i) Securitization Assets or
interests therein are sold or transferred to or financed by one or more Special Purpose Securitization Subsidiaries, and (ii) such Special
Purpose Securitization Subsidiaries finance (or refinance) their acquisition of such Securitization Assets or interests therein, or the financing
thereof, by selling or borrowing against Securitization Assets (including conduit and warehouse financings) and any Hedging Agreements
entered into in connection with such Securitization Assets; provided, that recourse to the Borrower or any Subsidiary (other than the Special
Purpose Securitization Subsidiaries) in connection with such transactions shall be limited to the extent customary (as determined by the
Borrower in good faith) for similar transactions in the applicable jurisdictions (including, to the extent applicable, in a manner consistent with
the delivery of a “true sale”/“absolute transfer” opinion with respect to any transfer by the Borrower or any Subsidiary (other than a Special
Purpose Securitization Subsidiary).
limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.
“person” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership,
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) that is (i) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, (ii) sponsored or maintained (at the time of determination or at
any time within the five years prior thereto) by the Borrower, any Subsidiary or any ERISA Affiliate, and (iii) in respect of which the
Borrower,
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any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.
“Platform” shall have the meaning assigned to such term in Section 9.17(a).
“Pledged Collateral” shall have the meaning assigned to such term in the Collateral Agreement.
“Pricing Grid” shall mean, with respect to the Initial Revolving Loans, Term A Loans and Revolving Facility
Commitments, as applicable, the table set forth below; provided that, (x) on the Amendment No. 1 Effective Date and until the next date that
any financial statements are delivered within the time periods specified in Section 5.04, the pricing level in effect shall correspond to a Net
Total Leverage Ratio of less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00 and (y) during the Covenant Adjustment Period and
until the first date after the Covenant Adjustment Period that any financial statements are delivered within the time periods specified in
Section 5.04, the pricing level in effect shall correspond to a Net Total Leverage Ratio of greater than 3.00 to 1.00:
Pricing Grid for Initial Revolving Loans and Term A Loans
Net Total Leverage Ratio
Applicable Margin for ABR Loans
Applicable Margin for
EurocurrencyTerm SOFR Loans
Greater than 3.00 to 1.00
Less than or equal to 3.00 to 1.00 but greater than
2.50 to 1.00
Less than or equal to 2.50 to 1.00 but greater than
2.00 to 1.00
Less than or equal to 2.00 to 1.00 but greater than
1.50 to 1.00
Less than or equal to 1.50 to 1.00
2.00%
1.75%
1.50%
1.25%
1.00%
3.00%
2.75%
2.50%
2.25%
2.00%
Pricing Grid for Revolving Facility Commitments
Net Total Leverage Ratio
Applicable Commitment Fee
Greater than 3.00 to 1.00
Less than or equal to 3.00 to 1.00 but greater than
2.50 to 1.00
Less than or equal to 2.50 to 1.00 but greater than
2.00 to 1.00
Less than or equal to 2.00 to 1.00 but greater than
1.50 to 1.00
42
0.500%
0.450%
0.400%
0.350%
Less than or equal to 1.50 to 1.00
0.300%
For the purposes of the Pricing Grid, and subject to the first proviso in this definition above, changes in the Applicable
Margin and Applicable Commitment Fee resulting from changes in the Net Total Leverage Ratio shall become effective on the date (the
“Adjustment Date”) that is three Business Days after the date on which the relevant financial statements are delivered to the Administrative
Agent pursuant to Section 5.04 for each fiscal quarter beginning with the first full fiscal quarter of the Borrower ended after the Closing Date,
and shall remain in effect until the next change to be effected pursuant to this definition. If any financial statements referred to in the
preceding sentence are not delivered within the time periods specified in Section 5.04, then, at the option of the Administrative Agent or the
Required Lenders, until the date that is three Business Days after the date on which such financial statements are delivered, the pricing level
that is one pricing level higher (if available) than the pricing level theretofore in effect shall apply as of the first Business Day after the date
on which such financial statements were to have been delivered but were not delivered. Each determination of the Net Total Leverage Ratio
pursuant to the Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 6.11.
“primary obligor” shall have the meaning assigned to such term in the definition of the term “Guarantee.”
“Prime Rate” shall mean the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if
The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal
Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any
similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined
by the Administrative Agent).
“Pro Forma Basis” shall mean, as to any person, for any events as described below that occur subsequent to the
commencement of a period for which the financial effect of such events is being calculated, and giving effect to the events for which such
calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the four
consecutive fiscal quarter period ended on or before the occurrence of such event (the “Reference Period”): (i) pro forma effect shall be
given to any Disposition, any acquisition, Investment, capital expenditure, construction, repair, replacement, improvement, development,
disposition, merger, amalgamation, consolidation (including the Transactions) (or any similar transaction or transactions whether or not
otherwise permitted under Section 6.04 or 6.05 or that require a waiver or consent of the Required Lenders, but if so required, solely to the
extent such waiver or consent has been obtained), any dividend, distribution or other similar payment, any designation of any Subsidiary as
an Unrestricted Subsidiary and any Subsidiary Redesignation, and any restructurings of the business of the Borrower or any of its
Subsidiaries that the Borrower or any of the Subsidiaries has determined to make and/or made and in the good faith determination of a
Responsible Officer of the Borrower are expected to have a continuing impact and are factually supportable, which would include cost
savings resulting from head count reduction, closure of facilities and similar operational and other cost savings, which adjustments the
Borrower determines are reasonable as set forth in a certificate of a Financial Officer of the Borrower (the foregoing, together with any
transactions related thereto or in connection therewith, the “relevant transactions”), in each case that occurred during the Reference Period
(or, in the case of determinations made pursuant to Section 2.21 or Article VI (other than Section 6.11), occurring during the Reference
Period or thereafter and through and including the date upon which the relevant transaction is consummated), (ii) in making any
determination on a Pro Forma Basis, (x) all Indebtedness (including Indebtedness issued, incurred or assumed as a result
43
of, or to finance, any relevant transactions and for which the financial effect is being calculated, whether incurred under this Agreement or
otherwise, but excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes and amounts outstanding under
any Permitted Securitization Financing, in each case not to finance any acquisition) issued, incurred, assumed or permanently repaid during
the Reference Period (or, in the case of determinations made pursuant to Section 2.21 or Article VI (other than Section 6.11), occurring
during the Reference Period or thereafter and through and including the date upon which the relevant transaction is consummated) shall be
deemed to have been issued, incurred, assumed or permanently repaid at the beginning of such period, and (y) Interest Expense of such
person attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in the preceding clause (x), bearing
floating interest rates shall be computed on a pro forma basis as if the rates that would have been in effect during the period for which pro
forma effect is being given had been actually in effect during such periods, and (iii) (A) for any Subsidiary Redesignation then being
designated, effect shall be given to such Subsidiary Redesignation and all other Subsidiary Redesignations after the first day of the relevant
Reference Period and on or prior to the date of the respective Subsidiary Redesignation then being designated, collectively, and (B) for any
designation of a Subsidiary as an Unrestricted Subsidiary, effect shall be given to such designation and all other designations of Subsidiaries
as Unrestricted Subsidiaries after the first day of the relevant Reference Period and on or prior to the date of the then applicable designation
of a Subsidiary as an Unrestricted Subsidiary, collectively.
In the event that EBITDA or any financial ratio is being calculated for purposes of determining whether Indebtedness or
any Lien relating thereto may be incurred or whether any Investment may be made, in each case, in connection with a Limited Condition
Transaction, the Borrower may elect pursuant to a certificate of a Responsible Officer delivered to the Administrative Agent to treat all or any
portion of the commitment relating thereto as being incurred at the time of such commitment, in which case any subsequent incurrence of
Indebtedness under such commitment shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.
Pro forma calculations made pursuant to the definition of the term “Pro Forma Basis” shall be determined in good faith by
a Responsible Officer of the Borrower and may include adjustments to reflect operating expense reductions and other operating
improvements, synergies or cost savings reasonably expected to result from any relevant pro forma event (including, to the extent applicable,
the Transactions), which adjustments pursuant to this clause shall (x) not exceed 15% (or, when taken together with the aggregate
adjustments with respect to cash items (and, for the avoidance of doubt, excluding non-cash items) made pursuant to clauses (i)(A) and (i)(B)
of the definition of “Consolidated Net Income” and clause (iv) of the definition of “EBITDA”, 25%) of EBITDA for the applicable Test
Period or Reference Period (calculated prior to giving effect to such capped adjustments (but for the avoidance of doubt, after giving effect to
other uncapped pro forma adjustments)) and (y) only be included to the extent that the actions resulting in such operating expense reductions
and other operating improvements, synergies or cost savings are taken or commenced or expected to be taken or commenced (in the good
faith determination of the Borrower) with 12 months after the date any such calculation is performed. The Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer of the Borrower setting forth such operating expense reductions, other operating
improvements or synergies, and information and calculations supporting them in reasonable detail.
For purposes of this definition, any amount in a currency other than Dollars will be converted to Dollars based on the
average exchange rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner
consistent with that used in calculating EBITDA for the applicable period.
compliance, on a Pro Forma Basis after giving effect on a Pro Forma Basis to
“Pro Forma Compliance” shall mean, at any date of determination, that the Borrower and its Subsidiaries shall be in
44
the relevant transactions (including the assumption, the issuance, incurrence and permanent repayment of Indebtedness), with the Financial
Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries for which the financial
statements and certificates required pursuant to Section 5.04 have been delivered or would have been required to be delivered. For the
avoidance of doubt, Pro Forma Compliance shall be tested without regard to whether or not the Financial Covenants were or were required to
be tested on the applicable quarter end date.
“Pro Rata Extension Offers” shall have the meaning assigned to such term in Section 2.21(e).
“Pro Rata Share” shall have the meaning assigned to such term in Section 9.08(f).
“Projections” shall mean the projections and any forward-looking statements (including statements with respect to booked
business) of the Borrower and the Subsidiaries furnished to the Lenders or the Administrative Agent by or on behalf of the Borrower or any
of the Subsidiaries prior to the Closing Date.
exemption may be amended from time to time.
“PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such
“Public Company Compliance” shall mean compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith, the provisions of the Securities Act and the Exchange Act, and the rules of
national securities exchange listed companies (in each case, as applicable to companies with equity or debt securities held by the public),
including procuring directors’ and officers’ insurance, legal and other professional fees, and listing fees.
“Public Lender” shall have the meaning assigned to such term in Section 9.17(b).
“QFC Credit Support” shall have the meaning assigned to such term in Section 9.25.
“Qualified Equity Interests” shall mean any Equity Interest other than Disqualified Stock.
“Rate” shall have the meaning assigned to such term in the definition of the term “Type.”
“Real Property” shall mean, collectively, all right, title and interest (including any leasehold estate) in and to any and all
parcels of or interests in real property owned in fee or leased by any Loan Party, whether by lease, license, or other means, together with, in
each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment
incidental to the ownership, lease or operation thereof.
from time to time originated, acquired or otherwise owned by the Borrower or any Subsidiary.
“Receivables Assets” shall mean accounts receivable (including any bills of exchange) and related assets and property
“Reference Period” shall have the meaning assigned to such term in the definition of the term “Pro Forma Basis.”
Indebtedness,” and “Refinanced” and “Refinancings” shall have a meaning correlative thereto.
“Refinance” shall have the meaning assigned to such term in the definition of the term “Permitted Refinancing
45
“Refinancing Effective Date” shall have the meaning assigned to such term in Section 2.21(j).
“Refinancing Notes” shall mean any secured or unsecured notes or loans issued by the Borrower or any Subsidiary Loan
Party (whether under an indenture, a credit agreement or otherwise) and the Indebtedness represented thereby; provided, that (a) 100% of the
Net Proceeds of such Refinancing Notes are used to permanently reduce Loans and/or replace Commitments substantially simultaneously
with the issuance thereof; (b) the principal amount (or accreted value, if applicable) of such Refinancing Notes does not exceed the principal
amount (or accreted value, if applicable) of the aggregate portion of the Loans so reduced and/or Commitments so replaced (plus unpaid
accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and
expenses); (c) the final maturity date of such Refinancing Notes is on or after the Term Facility Maturity Date or the Revolving Facility
Maturity Date, as applicable, of the Term Loans so reduced or the Revolving Facility Commitments so replaced; (d) the Weighted Average
Life to Maturity of such Refinancing Notes is greater than or equal to the remaining Weighted Average Life to Maturity of the Term Loans so
reduced or the Revolving Facility Commitments so replaced, as applicable; (e) in the case of Refinancing Notes in the form of notes issued
under an indenture, the terms thereof do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to
the Term Facility Maturity Date of the Term Loans so reduced or the Revolving Facility Maturity Date of the Revolving Facility
Commitments so replaced, as applicable (other than customary offers to repurchase or mandatory prepayment provisions upon a change of
control, asset sale or event of loss and customary acceleration rights after an event of default); (f) the other terms of such Refinancing Notes
(other than interest rates, fees, floors, funding discounts and redemption or prepayment premiums and other pricing terms), taken as a whole,
either (A) reflect market terms and conditions (taken as a whole) at the time of incurrence or establishment, as determined by the Borrower in
good faith or (B) are substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms, taken as a
whole, applicable to the Term A Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date in
effect at the time such Refinancing Notes are issued or those that are otherwise reasonably acceptable to the Administrative Agent), as
determined by the Borrower in good faith (or, if more restrictive, the Loan Documents are amended to contain such more restrictive terms to
the extent required to satisfy the foregoing standard); (g) there shall be no obligor in respect of such Refinancing Notes that is not a Loan
Party; and (h) Refinancing Notes that are secured by Collateral shall be subject to the provisions of a Permitted Pari Passu Intercreditor
Agreement or a Permitted Junior Intercreditor Agreement, as applicable.
“Refinancing Term Loans” shall have the meaning assigned to such term in Section 2.21(j).
obligations of the Borrower and its subsidiaries under the Existing Credit Agreement.
“Refinancing Transactions” shall mean the payment in full, termination and discharge of all Indebtedness and other
“Register” shall have the meaning assigned to such term in Section 9.04(b)(iv).
interpretations thereunder or thereof.
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and
46
“Related Fund” shall mean, with respect to any Lender that is a fund that invests in bank or commercial loans and similar
extensions of credit, any other fund that invests in bank or commercial loans and similar extensions of credit and is advised or managed by
(a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or an Affiliate of such entity) that administers, advises or manages such
Lender.
“Related Parties” shall mean, with respect to any specified person, such person’s Controlled or Controlling Affiliates and
the respective directors, trustees, officers, employees, agents and advisors of such person and such person’s Controlled or Controlling
Affiliates.
“Related Sections” shall have the meaning assigned to such term in Section 6.04.
escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the Environment.
“Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting,
“Relevant Governmental Body” meansshall mean the Federal Reserve Board and/FRB or the Federal Reserve Bank of
New York, or a committee officially endorsed or convened by the Federal Reserve Board and/FRB or the Federal Reserve Bank of New York,
or any successor thereto.
“Replacement Revolving Facilities” shall have the meaning assigned to such term in Section 2.20(l).
“Replacement Revolving Facility Commitments” shall have the meaning assigned to such term in Section 2.21(l).
“Replacement Revolving Facility Effective Date” shall have the meaning assigned to such term in Section 2.21(l).
“Replacement Revolving Loans” shall have the meaning assigned to such term in Section 2.21(l).
“Reportable Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued
thereunder, other than those events as to which the 30-day notice period referred to in Section 4043(c) of ERISA has been waived, with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Code).
Lenders.”
“Required Amount of Loans” shall have the meaning assigned to such term in the definition of the term “Required
“Required Lenders” shall mean, at any time, Lenders having (a) Loans outstanding, (b) Revolving L/C Exposures, and (c)
Available Unused Commitments that, taken together, represent more than 50% of the sum of (w) all Loans outstanding, (x) all Revolving L/C
Exposures, and (y) the total Available Unused Commitments at such time; provided, however, that if, at such time of determination, there are
two (2) or more Lenders, then Required Lenders shall require at least two (2) of such Lenders (with Lenders that are Affiliates or Approved
Funds of one another being considered as one (1) Lender for purposes of this proviso); provided, further, that the Loans, Revolving L/C
Exposures, and Available Unused Commitment of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
For purposes of the foregoing, “Required Amount of Loans” shall mean, at any time, the amount of Loans required to be held by Lenders in
order for such Lenders to constitute “Required Lenders” (without giving effect to the foregoing clause (b)).
47
amount of the Term Loans at such time (subject to the last paragraph of Section 9.08(b)).
“Required Prepayment Lenders” shall mean, at any time, the holders of more than 50% of the aggregate unpaid principal
“Required Revolving Facility Lenders” shall mean, at any time, Revolving Facility Lenders having (a) Revolving Facility
Loans outstanding, (b) Revolving L/C Exposures, and (c) Available Unused Commitments that, taken together, represent more than 50% of
the sum of (w) all Revolving Facility Loans outstanding, (x) all Revolving L/C Exposures, and (y) the total Available Unused Commitments
at such time; provided, however, that if, at such time of determination, there are two (2) or more Revolving Lenders, then Required
Revolving Facility Lenders shall require at least two (2) of such Revolving Lenders (with Revolving Lenders that are Affiliates or Approved
Funds of one another being considered as one (1) Lender for purposes of this proviso); provided, further, that the Revolving Facility Loans,
Revolving L/C Exposures, and Available Unused Commitment of any Defaulting Lender shall be disregarded in determining Required
Revolving Facility Lenders at any time.
“Requirement of Law” shall mean, as to any person, any law, treaty, rule, regulation, statute, order, ordinance, decree,
judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered
into or agreed by any Governmental Authority, in each case applicable to or binding upon such person or any of its property or assets or to
which such person or any of its property or assets is subject.
Resolution Authority.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK
“Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person and any other
officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement, or any
other duly authorized employee or signatory of such person.
“Restricted Payments” shall have the meaning assigned to such term in Section 6.06. The amount of any Restricted
Payment made other than in the form of cash or cash equivalents shall be the fair market value thereof (as determined by the Borrower in
good faith).
“Revaluation Date” shall mean (a) with respect to any Alternate Currency Letter of Credit, each of the following: (i) the
date of issuance, extension or renewal of such Alternate Currency Letter of Credit, (ii) the date of an amendment of such Alternate Currency
Letter of Credit having the effect of increasing the amount thereof, (iii) the date of any payment by the applicable Issuing Bank under such
Alternate Currency Letter of Credit, and (iv) such additional dates as the Administrative Agent or the applicable Issuing Bank shall determine
or the Required Lenders shall require and (b) with respect to any Alternate Currency Loans, each of the following: (i) the date of Borrowing
of such Eurocurrency Revolving Loans denominated in an Alternate Currency, (ii) the date of a continuation of such Eurocurrency Revolving
Loan denominated in an Alternate Currency pursuant to Section 2.07, and (iii) such additional dates as the Administrative Agent shall
determine or the Majority Lenders under the Revolving Facility shall require.
“Revolving Facility” shall mean the Revolving Facility Commitments of any Class and the extensions of credit made
hereunder by the Revolving Facility Lenders of such Class and, for purposes of Section 9.08(b), shall refer to all such Revolving Facility
Commitments as a single Class.
“Revolving Facility Borrowing” shall mean a Borrowing comprised of Revolving Facility Loans of the same Class.
48
“Revolving Facility Commitment” shall mean, with respect to each Revolving Facility Lender, the commitment of such
Revolving Facility Lender to make Revolving Facility Loans pursuant to Section 2.01(b), expressed as an amount representing the maximum
aggregate permitted amount of such Revolving Facility Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08, (b) reduced or increased from time to time pursuant to assignments by or to such
Lender under Section 9.04, and (c) increased (or replaced) as provided under Section 2.21. The initial amount of each Lender’s Revolving
Facility Commitment is set forth on Schedule 2.01 or in the Assignment and Acceptance or Incremental Assumption Agreement pursuant to
which such Lender shall have assumed its Revolving Facility Commitment, as applicable. The aggregate amount of the Lenders’ Revolving
Facility Commitments on the Closing Date is $50,000,000. On the Closing Date, there is only one Class of Revolving Facility Commitments.
After the Closing Date, additional Classes of Revolving Facility Commitments may be added or created pursuant to Incremental Assumption
Agreements.
“Revolving Facility Credit Exposure” shall mean, at any time with respect to any Class of Revolving Facility
Commitments, the sum of (a) the aggregate principal amount of the Revolving Facility Loans of such Class outstanding at such time
(calculated, in the case of Alternate Currency Loans, based on the Dollar Equivalent thereof), and (b) the Revolving L/C Exposure applicable
to such Class at such time minus, for the purpose of Section 6.11, the amount of Letters of Credit that have been Cash Collateralized in an
amount equal to the Minimum L/C Collateral Amount at such time. The Revolving Facility Credit Exposure of any Revolving Facility
Lender at any time shall be the product of (x) such Revolving Facility Lender’s Revolving Facility Percentage of the applicable Class and (y)
the aggregate Revolving Facility Credit Exposure of such Class of all Revolving Facility Lenders, collectively, at such time.
Facility Commitment or with outstanding Revolving Facility Loans.
“Revolving Facility Lender” shall mean a Lender (including an Incremental Revolving Facility Lender) with a Revolving
the context otherwise requires, the term “Revolving Facility Loans” shall include the Incremental Revolving Loans.
“Revolving Facility Loan” shall mean a Loan made by a Revolving Facility Lender pursuant to Section 2.01(b). Unless
“Revolving Facility Maturity Date” shall mean, as the context may require, (a) with respect to the Revolving Facility in
effect on the Closing Date, April 1, 2025 and (b) with respect to any other Classes of Revolving Facility Commitments, the maturity dates
specified therefor in the applicable Incremental Assumption Agreement.
“Revolving Facility Percentage” shall mean, with respect to any Revolving Facility Lender of any Class, the percentage of
the total Revolving Facility Commitments of such Class represented by such Lender’s Revolving Facility Commitment of such Class. If the
Revolving Facility Commitments of such Class have terminated or expired, the Revolving Facility Percentages of such Class shall be
determined based upon the Revolving Facility Commitments of such Class most recently in effect, giving effect to any assignments pursuant
to Section 9.04.
“Revolving Facility Termination Event” shall have the meaning assigned to such term in Section 2.05(k).
“Revolving L/C Exposure” of any Class shall mean at any time the sum of (a) the aggregate undrawn amount of all Letters
of Credit applicable to such Class outstanding at such time (calculated, in the case of Alternate Currency Letters of Credit, based on the
Dollar Equivalent thereof) and (b) the aggregate principal amount of all L/C Disbursements applicable to such Class that have not yet been
reimbursed at such time (calculated, in the case of Alternate Currency Letters of Credit, based on the Dollar
49
Equivalent thereof). The Revolving L/C Exposure of any Class of any Revolving Facility Lender at any time shall mean its applicable
Revolving Facility Percentage of the aggregate Revolving L/C Exposure applicable to such Class at such time. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the International Standby Practices, International Chamber of Commerce No. 590, such Letter of
Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that with
respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“S&P” shall mean Standard & Poor’s Ratings Group, Inc. and its successors and assigns.
“Sale and Lease-Back Transaction” shall have the meaning assigned to such term in Section 6.03.
“Sanctions” shall have the meaning assigned to such term in Section 3.25(b).
“Sanctions Laws” shall have the meaning assigned to such term in Section 3.25(c).
“SEC” shall mean the Securities and Exchange Commission or any successor thereto.
“Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and
between any Loan Party and any Cash Management Bank, or any Guarantee by any Loan Party of any Cash Management Agreement entered
into by and between any Subsidiary and any Cash Management Bank, in each case to the extent that such Cash Management Agreement or
such Guarantee, as applicable, is not otherwise designated in writing by the Borrower and such Cash Management Bank to the Administrative
Agent to not be included as a Secured Cash Management Agreement.
“Secured Hedge Agreement” shall mean any Hedging Agreement that is entered into by and between any Loan Party or
any Subsidiary and any Hedge Bank, or any Guarantee by any Loan Party of any Hedging Agreement entered into by and between any
Subsidiary and any Hedge Bank, in each case to the extent that such Hedging Agreement or such Guarantee, as applicable, is not otherwise
designated in writing by the Borrower and such Hedge Bank to the Administrative Agent to not be included as a Secured Hedge Agreement.
Notwithstanding the foregoing, for all purposes of the Loan Documents, any Guarantee of, or grant of any Lien to secure, any obligations in
respect of a Secured Hedge Agreement by a Guarantor shall not include any Excluded Swap Obligations.
“Secured Leverage Financial Covenant” shall have the meaning assigned to such term in Section 6.11(a).
“Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent, each Lender, each Issuing
Bank, each Hedge Bank that is party to any Secured Hedge Agreement, each Cash Management Bank that is party to any Secured Cash
Management Agreement and each sub-agent appointed pursuant to Section 8.02 by the Administrative Agent with respect to matters relating
to the Loan Documents or by the Collateral Agent with respect to matters relating to any Security Document.
“Securities Act” shall mean the Securities Act of 1933, as amended.
50
“Securitization Assets” shall mean any of the following assets (or interests therein) from time to time originated, acquired
or otherwise owned by the Borrower or any Subsidiary or in which the Borrower or any Subsidiary has any rights or interests, in each case,
without regard to where such assets or interests are located: (a) Receivables Assets, (b) franchise fees, royalties and other similar payments
made related to the use of trade names and other Intellectual Property, business support, training and other services, (c) revenues related to
distribution and merchandising of the products of the Borrower and its Subsidiaries, (d) rents, real estate taxes and other non-royalty amounts
due from franchisees, (e) [reserved], (f) parcels of or interests in real property, together with all easements, hereditaments and appurtenances
thereto, all improvements and appurtenant fixtures and equipment incidental to the ownership, lease or operation thereof, (g) any Equity
Interests of any Special Purpose Securitization Subsidiary or any Subsidiary of a Special Purpose Securitization Subsidiary and any rights
under any limited liability company agreement, trust agreement, shareholders agreement, organization or formation documents or other
agreement entered into in furtherance of the organization of such entity, (h) any equipment, contractual rights with unaffiliated third parties,
website domains and associated property and rights necessary for a Special Purpose Securitization Subsidiary to operate in accordance with
its stated purposes, (i) any rights and obligations associated with gift card or similar programs, and (j) other assets and property (or proceeds
of such assets or property) to the extent customarily included in securitization transactions of the relevant type in the applicable jurisdictions
(as determined by the Borrower in good faith).
“Security Documents” shall mean the Mortgages, the Collateral Agreement, the Notices of Grant of Security Interest in
Intellectual Property (as defined in the Collateral Agreement), and each of the security agreements, pledge agreements and other instruments
and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.10.
execution of the Existing Credit Agreement, by and between the Borrower and Nuance Communications, Inc.
“Separation and Distribution Agreement” shall mean the Separation and Distribution Agreement, executed prior to the
“Similar Business” shall mean any business, the majority of whose revenues are derived from (i) business or activities
conducted by the Borrower and its Subsidiaries on the Closing Date, (ii) any business that is a natural outgrowth or reasonable extension,
development or expansion of any such business or any business similar, reasonably related, incidental, complementary or ancillary to any of
the foregoing or (iii) any business that in the Borrower’s good faith business judgment constitutes a reasonable diversification of businesses
conducted by the Borrower and its Subsidiaries.
“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve
Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s
Website.
“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured
overnight financing rate).
“SOFR Borrowing” shall mean a Borrowing comprised of SOFR Loans.
“SOFR Loan” shall mean any Loan bearing interest at a rate based on Adjusted Term SOFR as provided in Article II.
“Special Flood Hazard Area” shall have the meaning assigned to such term in Section 5.02(c).
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“Special Purpose Securitization Subsidiary” shall mean (i) a direct or indirect Subsidiary of the Borrower established in
connection with a Permitted Securitization Financing for the acquisition of Securitization Assets or interests therein, and which is organized
in a manner (as determined by the Borrower in good faith) intended to reduce the likelihood that it would be substantively consolidated with
the Borrower or any of the Subsidiaries (other than Special Purpose Securitization Subsidiaries) in the event the Borrower or any such
Subsidiary becomes subject to a proceeding under the U.S. Bankruptcy Code (or other insolvency law) and (ii) any subsidiary of a Special
Purpose Securitization Subsidiary.
“Specified L/C Sublimit” shall mean, with respect to any Issuing Bank, the amounts set forth beside such Issuing Bank’s
name on Schedule 1.01(F) hereto or, in each case, such other amount as specified in the agreement pursuant to which such person becomes an
Issuing Bank hereunder or, in each case, such larger amount not to exceed the Revolving Facility Commitment as the Administrative Agent
and the applicable Issuing Bank may agree or, with respect to the Issuing Bank under an Existing Roll-Over Letter of Credit, the additional
amount of such Existing Roll-Over Letter of Credit.
“Spin-Off” shall mean the spin-off of the Borrower by Nuance Communications, Inc. into a new publicly traded company,
which operates the automotive technology business owned by Nuance Communications, Inc. and its subsidiaries, on October 1, 2019, as
more fully described in the registration statement on Form 10, filed by the Borrower with the SEC on May 21, 2019, as amended.
with the Spin-Off.
“Spin-Off Transactions” shall mean the Spin-Off and the series of reorganization transactions consummated in connection
“Spot Rate” shall mean, with respect to any currency, the rate determined by the Administrative Agent or the applicable
Issuing Bank, as applicable, to be the rate quoted by the person acting in such capacity as the spot rate for the purchase by such person of
such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m., Local Time on the
date three Business Days prior to the date as of which the foreign exchange computation is made or if such rate cannot be computed as of
such date such other date as the Administrative Agent or such Issuing Bank shall reasonably determine is appropriate under the
circumstances; provided, that the Administrative Agent or such Issuing Bank may obtain such spot rate from another financial institution
designated by the Administrative Agent or such Issuing Bank if the person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency.
“Standby Letters of Credit” shall have the meaning assigned to such term in Section 2.05(a).
“Subagent” shall have the meaning assigned to such term in Section 8.02.
“subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any corporation, partnership,
association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made,
directly or indirectly, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” shall mean, unless the context otherwise requires, a subsidiary of the Borrower. Notwithstanding the
foregoing (and except for purposes of the definition of “Unrestricted Subsidiary” contained herein) an Unrestricted Subsidiary shall be
deemed not to be a Subsidiary of the Borrower or any of its Subsidiaries for purposes of this Agreement.
52
be amended, restated, supplemented or otherwise modified from time to time, between each Subsidiary Loan Party and the Collateral Agent.
“Subsidiary Guarantee Agreement” shall mean the Subsidiary Guarantee Agreement dated as of the Closing Date as may
“Subsidiary Loan Party” shall mean (a) each Wholly Owned Domestic Subsidiary of the Borrower that is not an Excluded
Subsidiary and (b) any other Domestic Subsidiary of the Borrower that may be designated by the Borrower (by way of delivering to the
Collateral Agent a supplement to the Collateral Agreement and a supplement to the Subsidiary Guarantee Agreement, in each case, duly
executed by such Subsidiary) from time to time to be a guarantor in respect of the Obligations and the obligations in respect of the Loan
Documents with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), whereupon such
Subsidiary shall be obligated to comply with the other requirements of Section 5.10(d) as if it were newly acquired.
this Section 1.01.
“Subsidiary Redesignation” shall have the meaning provided in the definition of “Unrestricted Subsidiary” contained in
“Successor Borrower” shall have the meaning assigned to such term in Section 6.05(o).
“Supported QFC” shall have the meaning assigned to such term in Section 9.25.
contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Obligation” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement,
Borrower and Nuance Communications, Inc.
“Tax Matters Agreement” shall mean the Tax Matters Agreement, dated as of September 30, 2019, by and between the
“Taxes” shall mean any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or
other similar charges imposed by any Governmental Authority, whether computed on a separate, consolidated, unitary, combined or other
basis and any interest, fines, penalties or additions to tax with respect to the foregoing.
“Term A Borrowing” shall mean any Borrowing comprised of Term A Loans.
“Term A Facility” shall mean the Term A Loan Commitments and the Term A Loans made hereunder.
“Term A Facility Maturity Date” shall mean April 1, 2025.
“Term A Loan Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Term A
Loans hereunder. The amount of each Lender’s Term A Loan Commitment as of the Closing Date is set forth on Schedule 2.01. The
aggregate amount of the Term A Loan Commitments as of the Closing Date is $125,000,000.
“Term A Loan Installment Date” shall have the meaning assigned to such term in Section 2.10(a)(i).
“Term A Loans” shall mean (a) the term loans made by the Lenders to the Borrower pursuant to Section 2.01(a), and (b)
any Incremental Term Loans in the form of Term A Loans made by the Incremental Term Lenders to the Borrower pursuant to Section
2.01(c).
“Term Borrowing” shall mean any Term A Borrowing or any Incremental Term Borrowing.
53
“Term Facility” shall mean the Term A Facility and/or any or all of the Incremental Term Facilities.
Incremental Term Loans and/or Other Term Loans.
“Term Facility Commitment” shall mean the commitment of a Lender to make Term Loans, including Term A Loans,
“Term Facility Maturity Date” shall mean, as the context may require, (a) with respect to the Term A Facility in effect on
the Closing Date, the Term A Facility Maturity Date and (b) with respect to any other Class of Term Loans, the maturity dates specified
therefor in the applicable Incremental Assumption Agreement.
Date.
“Term Loan Installment Date” shall mean any Term A Loan Installment Date or any Incremental Term Loan Installment
“Term Loans” shall mean the Term A Loans and/or the Incremental Term Loans.
“Term SOFR” shall mean,
(a)
(b)
for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the
applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S.
Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term
SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination
Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and
a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be
the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S.
Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the
Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three
(3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
for any calculation with respect to a ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on
the day (such day, the “ABR Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days
prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m.
(Eastern time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has
not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR
Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by
the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term
SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S.
Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such
ABR SOFR Determination Day;
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clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or
“Term SOFR Adjustment” shall mean a percentage equal to 0.10% per annum.
administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor
recommended by the Relevant Governmental Body.
“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR that has been selected or
“Termination Date” shall mean the date on which (a) all Commitments shall have been terminated, (b) the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document and all other Loan Obligations shall
have been paid in full (other than in respect of contingent indemnification and expense reimbursement claims not then due) and (c) all Letters
of Credit (other than those that have been Cash Collateralized) have been cancelled or have expired and all amounts drawn or paid thereunder
have been reimbursed in full.
“Test Period” shall mean, on any date of determination, the period of four consecutive fiscal quarters of the Borrower then
most recently ended (taken as one accounting period) for which financial statements have been (or were required to be) delivered pursuant to
Section 5.04(a) or 5.04(b); provided that prior to the first date financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b),
the Test Period in effect shall be the four fiscal quarter period ended March 31, 2020.
“Third Party Funds” shall mean any segregated accounts or funds, or any portion thereof, received by Borrower or any of
its Subsidiaries as agent on behalf of third parties in accordance with a written agreement that imposes a duty upon Borrower or one or more
of its Subsidiaries to collect and remit those funds to such third parties.
“Total Leverage Financial Covenant” shall have the meaning assigned to such term in Section 6.11(b).
“Trade Letters of Credit” shall have the meaning assigned to such term in Section 2.05(a).
“Transaction Documents” shall mean the Loan Documents.
“Transactions” shall mean, collectively, the transactions to occur pursuant to the Transaction Documents, including (a) the
consummation of the Refinancing Transactions; (b) the execution, delivery and performance of the Loan Documents, the creation of the
Liens pursuant to the Security Documents, and the initial borrowings hereunder and the use of proceeds thereof; and (c) the payment of all
fees, costs and expenses to be paid and owing in connection with the foregoing.
Existing Credit Agreement, by and between Cerence Operating Company and Nuance Communications, Inc.
“Transition Services Agreement” shall mean the Transition Services Agreement, executed prior to the execution of the
“Type” shall mean, when used in respect of any Loan or Borrowing, the Rate by reference to which interest on such Loan
or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the Adjusted LIBO RateTerm
SOFR and the ABR.
55
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as
amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of
the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes
certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms,
responsibility for the resolution of any UK Financial Institution.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having
Adjustment.
“Unadjusted Benchmark Replacement” shall mean the Benchmark Replacement excluding the Benchmark Replacement
“Uniform Commercial Code” shall mean the Uniform Commercial Code as the same may from time to time be in effect in
the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to
apply to any item or items of Collateral.
“Unreimbursed Amount” shall have the meaning assigned to such term in Section 2.05(e).
as “restricted” on a consolidated balance sheet of the Borrower or any of its Subsidiaries.
“Unrestricted Cash” shall mean cash or cash equivalents of the Borrower or any of its Subsidiaries that would not appear
“Unrestricted Subsidiary” shall mean (1) any Subsidiary of the Borrower identified on Schedule 1.01(D), (2) any other
Subsidiary of the Borrower, whether now owned or acquired or created after the Closing Date, that is designated by the Borrower as an
Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided, that the Borrower shall only be permitted to so
designate a new Unrestricted Subsidiary after the Closing Date so long as (a) no Event of Default has occurred and is continuing or would
result therefrom, (b) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by the Borrower or any of its Subsidiaries)
through Investments as permitted by, and in compliance with, Section 6.04, and any prior or concurrent Investments in such Subsidiary by the
Borrower or any of its Subsidiaries shall be deemed to have been made under Section 6.04, and (c) without duplication of clause (b), any net
assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof shall be treated as Investments pursuant to Section
6.04; and (3) any subsidiary of an Unrestricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for
purposes of this Agreement (each, a “Subsidiary Redesignation”); provided, that (i) no Event of Default has occurred and is continuing or
would result therefrom and (ii) the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a
Responsible Officer of the Borrower, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding
clause (i).
“U.S. Bankruptcy Code” shall mean Title 11 of the United States Code, as amended.
“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on
which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for
the entire day for purposes of trading in United States government securities; provided that, for purposes of notice requirements in Sections
2.03, 2.07, 2.08, 2.09 and 2.10, in each case, such day is also a Business Day.
“U.S. Lender” shall mean any Lender other than a Foreign Lender.
“U.S. Special Resolution Regimes” shall have the meaning assigned to such term in Section 9.25.
56
Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107 56 (signed into law October 26, 2001)).
“USA PATRIOT Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to
“USPAP” shall mean the Uniform Standards of Professional Appraisal Practice, as amended.
election of directors of such person under ordinary circumstances.
“Voting Stock” shall mean, with respect to any person, such person’s Equity Interests having the right to vote for the
“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years
obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding
principal amount of such Indebtedness.
“Wholly Owned Domestic Subsidiary” shall mean a Wholly Owned Subsidiary that is also a Domestic Subsidiary.
“Wholly Owned Subsidiary” of any person shall mean a subsidiary of such person, all of the Equity Interests of which
(other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or
another Wholly Owned Subsidiary of such person. Unless the context otherwise requires, “Wholly Owned Subsidiary” shall mean a
Subsidiary of the Borrower that is a Wholly Owned Subsidiary of the Borrower.
such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from
“Write-Down and Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and
conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member
Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United
Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a
liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability
into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a
right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation
that are related to or ancillary to any of those powers.
Section 1.02
Terms Generally. The definitions set forth or referred to in Section 1.01 shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without
limitation.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, any
reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified
from time to time. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, that, if the Borrower notifies
57
the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring
after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as
in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
Effectuation of Transactions. Each of the representations and warranties of the Borrower contained in
this Agreement (and all corresponding definitions) are made after giving effect to the Transactions as shall have taken place on or prior to the
date of determination, unless the context otherwise requires.
Section 1.03
Section 1.04
Exchange Rates; Currency Equivalents. (a) The Administrative Agent shall determine the Spot Rate as
of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Alternate Currency Letters of Credit and Alternate
Currency Loans. Such Spot Rate shall become effective as of such Revaluation Date and shall be the Spot Rate employed in converting any
amounts between the Dollars and each Alternate Currency until the next Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial ratios hereunder or except as otherwise provided herein, the
applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as
determined by the Administrative Agent in accordance with this Agreement. No Default or Event of Default shall arise as a result of any
limitation or threshold set forth in Dollars in Article VI or clause (f) or (j) of Section 7.01 being exceeded solely as a result of changes in
currency exchange rates from those rates applicable on the first day of the fiscal quarter in which such determination occurs or in respect of
which such determination is being made.
(b)
Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment
of a Eurocurrency Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple
amount, is expressed in Dollars, but such Borrowing, Eurocurrency Loan or Letter of Credit is denominated in an Alternate Currency, such
amount shall be the Alternate Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternate Currency, with 0.5
of a unit being rounded upward), as determined by the Administrative Agent or the applicable Issuing Bank, as applicable.
Section 1.05
Additional Alternate Currencies for Loans.
The Borrower may from time to time request that Eurocurrency Revolving Loans be made in a
currency other than Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and
freely transferable and convertible into Dollars. Such request shall be subject to the approval of the Administrative Agent.
(a)
(b)
Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20 Business
Days prior to the date of the desired Credit Event (or such other time or date as may be agreed by the Administrative Agent, in its sole
discretion). The Administrative Agent shall promptly notify each Revolving Facility Lender thereof. Each Revolving Facility Lender shall
notify the Administrative Agent, not later than 11:00 a.m., 10 Business Days after receipt of such request whether it consents, in its sole
discretion, to the making of Eurocurrency Revolving Loans in such requested currency.
in the preceding sentence shall be deemed to be a refusal by such Revolving Facility
(c)
Any failure by a Revolving Facility Lender to respond to such request within the time period specified
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Lender to permit Eurocurrency Revolving Loans to be made in such requested currency. If the Administrative Agent and all the Revolving
Facility Lenders consent to making Eurocurrency Revolving Loans in such requested currency, the Administrative Agent shall so notify the
Borrower and such currency shall thereupon be deemed for all purposes to be an Alternate Currency hereunder for purposes of any
Borrowings of Eurocurrency Revolving Loans. If the Administrative Agent shall fail to obtain consent to any request for an additional
currency under this Section 1.05, the Administrative Agent shall promptly so notify the Borrower.
Section 1.01
Change of Currency.
(d)
Each obligation of the Borrower to make a payment denominated in the national currency unit of any
member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the
time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any
Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with
respect to such Borrowing, at the end of the then current Interest Period.
Each provision of this Agreement shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the Euro.
(e)
Each provision of this Agreement also shall be subject to such reasonable changes of construction as
the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in currency.
(f)
Timing of Payment or Performance. Except as otherwise expressly provided herein, when the payment
of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a
Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.
Section 1.06
references to New York City time (daylight or standard, as applicable).
Section 1.07
Times of Day. Unless otherwise specified herein, all references herein to times of day shall be
Section 1.08
Limited Condition Transaction, for purposes of:
Limited Conditionality Transactions. In connection with any action being taken in connection with a
of the Net Total Leverage Ratio or the Net Secured Leverage Ratio;
(i)
determining compliance with any provision of this Agreement which requires the calculation
of Default shall have occurred and be continuing; or
(ii)
determining the accuracy of representations and warranties and/or whether a Default or Event
(iii)
multiple of EBITDA);
testing availability under baskets set forth in this Agreement (including baskets measured as a
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in each case, the date of determination of whether any such action shall be permitted hereunder shall be, at the election of the Borrower (the
Borrower’s election in connection with any Limited Condition Transaction, an “LCT Election”) either the date the definitive agreements for
the relevant acquisition or Investment are entered into or the date of delivery of irrevocable (which may be conditional) notice with respect to
the relevant debt prepayment (or, if so elected by the Borrower, the date of the consummation of the relevant acquisition or Investment or the
date of the making of the relevant debt prepayment) (either, as applicable, the “LCT Test Date”) and if, after giving effect on a Pro Forma
Basis to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of
Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT
Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or
basket shall be deemed to have been complied with.
For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which
compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket, including
due to fluctuations in EBITDA of the Borrower or the person subject to such Limited Condition Transaction, at or prior to the consummation
of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the
Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio
or basket availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition
Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires or
such irrevocable notice is rescinded (or the conditions with respect thereto are not satisfied), as applicable, without consummation of such
Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition
Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have
been consummated.
Section 1.09
Divisions. For all purposes under the Loan Documents, in connection with any division or plan of
division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of
any person becomes the asset, right, obligation or liability of a different person, then it shall be deemed to have been transferred from the
original person to the subsequent person and (b) if any new person comes into existence, such new person shall be deemed to have been
organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.01
Rates. The Administrative Agent does not warrant or accept any responsibility for, and shall not have
any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term
SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition
thereof, or with respect to any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether
the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may
or may not be adjusted pursuant to Section 2.14(c), will be similar to, or produce the same value or economic equivalence of, or have the
same volume or liquidity as, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its
discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent
and its Affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Adjusted
Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant
adjustments thereto and such transactions may be adverse to the Borrower. The Administrative Agent may select information sources or
services in its reasonable discretion to ascertain the Term SOFR
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Reference Rate, Adjusted Term SOFR or Term SOFR, or any other Benchmark, any component definition thereof or rates referred to in the
definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other
person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or
expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component
thereof) provided by any such information source or service.
ARTICLE II
The Credits
Section 2.01
Commitments. Subject to the terms and conditions set forth herein:
aggregate principal amount not to exceed its Term A Loan Commitment,
(a)
each Lender agrees to make Term A Loans in Dollars to the Borrower on the Closing Date in an
(b)
each Lender agrees to make Revolving Facility Loans of a Class in Dollars to the Borrower from time
to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Revolving Facility Credit
Exposure of such Class exceeding such Lender’s Revolving Facility Commitment of such Class or (ii) the Revolving Facility Credit
Exposure of such Class exceeding the total Revolving Facility Commitments of such Class. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Facility Loans,
each Lender having an Incremental Term Loan Commitment agrees, subject to the terms and
conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Term Loans to the Borrower, in an
aggregate principal amount not to exceed its Incremental Term Loan Commitment, and
(c)
prepaid may not be reborrowed.
(d)
amounts of Term A Loans borrowed under Section 2.01(a) or Section 2.01(c) that are repaid or
Section 2.02
Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans under
the same Facility and of the same Type made by the Lenders ratably in accordance with their respective Commitments under the applicable
Facility; provided, however, that Revolving Facility Loans of any Class shall be made by the Revolving Facility Lenders of such Class
ratably in accordance with their respective Revolving Facility Percentages on the date such Loans are made hereunder. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the
Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b)
Subject to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or
EurocurrencySOFR Loans as the Borrower may request in accordance herewith. ABR Loans shall be denominated in Dollars. Each Lender
at its option may make any ABR Loan or EurocurrencySOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan; provided, that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under Section 2.15 or 2.17 solely
in respect of increased costs resulting from such exercise and existing at the time of such exercise.
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(c)
At the commencement of each Interest Period for any Eurocurrency Revolving Facility Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum. At the time that each ABR Revolving Facility Borrowing is made, suchEach Borrowing shall be in an aggregate amount that is
an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that an ABR Revolving Facility
Borrowing may be in an aggregate amount that is equal to the entire unused available balance of the Revolving Facility Commitments or
that is required to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e). Borrowings of more than one
Type may be outstanding at the same time; provided, however, that the Borrower shall not be entitled to request any Borrowing that, if
made, would result in more than (i) six (6) EurocurrencyTerm SOFR Borrowings outstanding under all Term Facilities at any time and (ii)
ten (10) EurocurrencyTerm SOFR Borrowings outstanding under all Revolving Facilities at any time. Borrowings having different Interest
Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.
Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request,
or to elect to convert or continue, any Borrowing of any Class if the Interest Period requested with respect thereto would end after the
Revolving Facility Maturity Date or the Term Facility Maturity Date for such Class, as applicable.
(d)
Section 2.03
Requests for Borrowings. To request a Revolving Facility Borrowing and/or a Term Borrowing, the
Borrower shall notify the Administrative Agent in writing of such request (a) in the case of a EurocurrencySOFR Borrowing, not later than
11:00 a.m., Local Time, three U.S. Government Securities Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., Local Time, on the Business Day of the proposed Borrowing (or, in each case, such shorter period
as the Administrative Agent may agree); provided, that, (i) to request a EurocurrencySOFR Borrowing or ABR Borrowing on the Closing
Date, the Borrower shall notify the Administrative Agent of such request not later than 3:00 p.m., Local Time, one Business Day prior to the
Closing Date (or such later time as the Administrative Agent may agree), (ii) any such notice of an ABR Revolving Facility Borrowing to
finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e) may be given not later than 11:00 a.m., Local Time,
on the date of the proposed Borrowing and (iii) any such notice of an Incremental Revolving Borrowing or Incremental Term Borrowing may
be given at such time as provided in the applicable Incremental Assumption Agreement. Each such written Borrowing Request shall be
irrevocable (other than in the case of any notice given in respect of Incremental Commitments, which may be conditioned as provided in the
applicable Incremental Assumption Agreement). Each such written Borrowing Request shall specify the following information in
compliance with Section 2.02:
Refinancing Term Loans, Other Term Loans, Extended Revolving Loans or Replacement Revolving Loans, as applicable;
(i)
whether such Borrowing is to be a Borrowing of Term A Loans, Revolving Facility Loans,
(ii)
(iii)
(iv)
(v)
the aggregate amount of the requested Borrowing;
the date of such Borrowing, which shall be a Business Day;
whether such Borrowing is to be an ABR Borrowing or a EurocurrencySOFR Borrowing;
in the case of a EurocurrencySOFR Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”;
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in the case of a Eurocurrency Revolving Facility Borrowing, the currency in which such
Borrowing is to be denominated (which shall be Dollars or, subject to compliance with Sections 1.05 and 9.08(i), an Alternate
Currency); and
(vi)
(vii)
the location and number of the Borrower’s account to which funds are to be disbursed.
If no election as to the currency of any Revolving Facility Borrowing is made, then the requested Borrowing shall be made in Dollars. If no
election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified
with respect to any requested EurocurrencySOFR Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall
advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
Section 2.04
[Reserved].
Section 2.05
Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Borrower may
request the issuance of one or more letters of credit or bank guarantees in Dollars or any Alternate Currency in the form of (x) trade letters of
credit or bank guarantees in support of trade obligations of the Borrower and its Subsidiaries incurred in the ordinary course of business (such
letters of credit or bank guarantees issued for such purposes, “Trade Letters of Credit”) and (y) standby letters of credit issued for any other
lawful purposes of the Borrower and its Subsidiaries (such letters of credit issued for such purposes, “Standby Letters of Credit”; each such
letter of credit or bank guarantee, issued hereunder, a “Letter of Credit” and collectively, the “Letters of Credit”) for its own account or for
the account of any Subsidiary in a form reasonably acceptable to the applicable Issuing Bank, at any time and from time to time during the
applicable Availability Period and prior to the date that is five Business Days prior to the applicable Revolving Facility Maturity Date;
provided, that (x) no Issuing Bank shall be required to issue Trade Letters of Credit unless it agrees in writing to do so in its sole discretion,
(y) the Borrower shall remain primarily liable in the case of a Letter of Credit issued for the account of a Subsidiary and (z) the applicable
Issuing Bank shall not be obligated to issue Letters of Credit if any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, the issuance of such Letter of Credit
would violate any Requirements of Law binding upon such Issuing Bank or the issuance of the Letter of Credit would violate one or more
policies of such Issuing Bank applicable to letters of credit generally. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(b)
Notice of Issuance, Amendment, Renewal, Extension: Certain Conditions. To request the issuance of
a Letter of Credit (or the amendment, renewal (other than an automatic extension in accordance with paragraph (c) of this Section 2.05) or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver or transmit by electronic communication, if arrangements for
doing so have been approved by the applicable Issuing Bank, to the applicable Issuing Bank and the Administrative Agent (at least three
Business Days (or, in the case of an Alternate Currency Letter of Credit where the Issuing Bank is Wells Fargo Bank, N.A., at least five
Business Days) in advance of the requested date of issuance, amendment or extension or such shorter period as the Administrative Agent
and the applicable Issuing Bank in their sole discretion may agree) a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended or extended, and specifying the date of issuance, amendment or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which
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shall comply with paragraph (c) of this Section 2.05), the amount and currency (which may be Dollars or any Alternate Currency) of such
Letter of Credit, the name and address of the beneficiary thereof, whether such Letter of Credit constitutes a Standby Letter of Credit or a
Trade Letter of Credit and such other information as shall be necessary to issue, amend or extend such Letter of Credit. If requested by the
applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued, amended or extended only if (and upon issuance, amendment or
extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment or extension, (i) the Revolving Facility Credit Exposure shall not exceed the applicable Revolving Facility Commitments, (ii)
the Revolving L/C Exposure shall not exceed the Letter of Credit Sublimit and (iii) with respect to the applicable Issuing Bank, the stated
amount of all outstanding Letters of Credit issued by such Issuing Bank shall not exceed the applicable Specified L/C Sublimit of such
Issuing Bank then in effect. For the avoidance of doubt, no Issuing Bank shall be obligated to issue an Alternate Currency Letter of Credit
if such Issuing Bank does not otherwise issue letters of credit in such Alternate Currency.
(c)
Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of
(i) the date one year (unless otherwise agreed upon by the Borrower and the applicable Issuing Bank in their sole discretion) after the date
of the issuance of such Letter of Credit (or, in the case of any extension thereof, one year (unless otherwise agreed upon by the Borrower
and the applicable Issuing Bank in their sole discretion) after such renewal or extension) and (ii) the date that is five Business Days prior to
the applicable Revolving Facility Maturity Date; provided, that any Letter of Credit with a one year tenor may provide for automatic
renewal or extension thereof for additional one year periods (which, in no event, shall extend beyond the date referred to in clause (ii) of
this paragraph (c)) so long as such Letter of Credit permits the applicable Issuing Bank to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
within a time period during such twelve-month period to be agreed upon at the time such Letter of Credit is issued; provided, further, that if
such Issuing Bank consents in its sole discretion, the expiration date on any Letter of Credit may extend beyond the date referred to in
clause (ii) above, provided, that if any such Letter of Credit is outstanding or is issued under the Revolving Facility Commitments of any
Class after the date that is five Business Days prior to the Revolving Facility Maturity Date for such Class the Borrower shall provide Cash
Collateral pursuant to documentation reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank in an amount equal
to the face amount of each such Letter of Credit on or prior to the date that is five Business Days prior to such Revolving Facility Maturity
Date or, if later, such date of issuance.
(d)
Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) under the Revolving Facility Commitments of any Class and without any further action on the part of the applicable
Issuing Bank or the Revolving Facility Lenders, such Issuing Bank hereby grants to each Revolving Facility Lender under such Class, and
each such Revolving Facility Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such
Revolving Facility Lender’s applicable Revolving Facility Percentage of the aggregate amount available to be drawn under such Letter of
Credit (calculated, in the case of Alternate Currency Letters of Credit, based on the Dollar Equivalent thereof). In consideration and in
furtherance of the foregoing, each Revolving Facility Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, in Dollars, such Revolving Facility Lender’s applicable Revolving Facility
Percentage of each L/C Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section 2.05, or of any reimbursement payment required to be refunded to the Borrower for any reason (calculated, in
the case of any Alternate Currency Letter of Credit, based on the Dollar Equivalent thereof). Each Revolving Facility Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this paragraph in
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respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or
termination of the Commitments or the fact that, as a result of changes in currency exchange rates, such Revolving Facility Lender’s
Revolving Facility Credit Exposure at any time might exceed its Revolving Facility Commitment at such time (in which case Section
2.11(f) would apply), and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e)
Reimbursement. If the applicable Issuing Bank shall make any L/C Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such L/C Disbursement by paying to the Administrative Agent an amount in Dollars equal to
such L/C Disbursement (or, in the case of an Alternate Currency Letter of Credit, the Dollar Equivalent thereof) not later than 2:00 p.m.,
Local Time, on the first Business Day after the Borrower receives notice under paragraph (g) of this Section 2.05 of such L/C Disbursement
(or the second Business Day, if such notice is received after 12:00 noon, Local Time), together with accrued interest thereon from the date
of such L/C Disbursement at the rate applicable to ABR Revolving Facility Loans of the applicable Class; provided, that the Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR
Revolving Facility Borrowing of the applicable Class, in an equivalent amount and, to the extent so financed, the Borrower’s obligation to
make such payment shall be discharged and replaced by the resulting ABR Revolving Facility Borrowing. If the Borrower fails to
reimburse any L/C Disbursement when due, then the Administrative Agent shall promptly notify the applicable Issuing Bank and each other
applicable Revolving Facility Lender of the applicable L/C Disbursement, the payment then due from the Borrower in respect thereof (the
“Unreimbursed Amount”) and, in the case of a Revolving Facility Lender, such Lender’s Revolving Facility Percentage thereof. Promptly
following receipt of such notice, each Revolving Facility Lender with a Revolving Facility Commitment of the applicable Class shall pay to
the Administrative Agent in Dollars its Revolving Facility Percentage of the Unreimbursed Amount in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Facility Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it
from the Revolving Facility Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant
to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving
Facility Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing
Bank as their interests may appear. Any payment made by a Revolving Facility Lender pursuant to this paragraph to reimburse an Issuing
Bank for any L/C Disbursement (other than the funding of an ABR Revolving Loan as contemplated above) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such L/C Disbursement.
(f)
Obligations Absolute. The obligation of the Borrower to reimburse L/C Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of
such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations
hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure
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to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising
from causes beyond the control of such Issuing Bank, or any of the circumstances referred to in clauses (i), (ii) or (iii) of the first sentence;
provided, that the foregoing shall not be construed to excuse the applicable Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted
by applicable law) suffered by the Borrower that are determined by final and binding decision of a court of competent jurisdiction to have
been caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter
of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct
on the part of the applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with
the terms of such Letter of Credit.
(g)
Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by electronic means) of any such demand for payment under a Letter of
Credit and whether such Issuing Bank has made or will make an L/C Disbursement thereunder; provided, that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Revolving Facility Lenders with
respect to any such L/C Disbursement.
(h)
Interim Interest. If an Issuing Bank shall make any L/C Disbursement, then, unless the Borrower
shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for
each day from and including the date such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C
Disbursement, at the rate per annum then applicable to ABR Revolving Loans of the applicable Class; provided, that, if such L/C
Disbursement is not reimbursed by the Borrower when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after
the date of payment by any Revolving Facility Lender pursuant to paragraph (e) of this Section 2.05 to reimburse such Issuing Bank shall
be for the account of such Revolving Facility Lender to the extent of such payment.
(i)
Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by written agreement
among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall
notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12. From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of such Issuing Bank under
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this Agreement with respect to Letters of Credit issued by it prior to such replacement but shall not be required to issue additional Letters of
Credit.
(j)
Cash Collateralization Following Certain Events. If and when the Borrower is required to Cash
Collateralize any Revolving L/C Exposure relating to any outstanding Letters of Credit pursuant to any of Section 2.05(c), 2.11(e), 2.11(f),
2.11(g), 2.22(a)(v) or 7.01, the Borrower shall deposit in an account with or at the direction of the Collateral Agent, in the name of the
Collateral Agent and for the benefit of the Revolving Facility Lenders, an amount in cash in Dollars equal to the Revolving L/C Exposure
as of such date (or, in the case of Sections 2.05(c), 2.11(e), 2.11(f), 2.11(g) and 2.22(a)(v), the portion thereof required by such sections).
Each deposit of Cash Collateral (x) made pursuant to this paragraph or (y) made by the Administrative Agent pursuant to Section 2.22(a)
(ii), in each case, shall be held by the Collateral Agent as collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over
such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole
discretion of (i) for so long as an Event of Default shall be continuing, the Collateral Agent and (ii) at any other time, the Borrower, in each
case, in Permitted Investments and at the risk and expense of the Borrower, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account shall be applied by the Collateral Agent to reimburse each
Issuing Bank for L/C Disbursements for which such Issuing Bank has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrower for the Revolving L/C Exposure at such time or, if the maturity of the
Loans has been accelerated (but subject to the consent of Lenders with Revolving L/C Exposure representing greater than 50% of the total
Revolving L/C Exposure), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default or the existence of a Defaulting Lender
or the occurrence of a limit under Section 2.11(e), (f) or (g) being exceeded, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default have been cured or waived or the termination of the
Defaulting Lender status or the limits under Sections 2.11(e), (f) and (g) no longer being exceeded, as applicable.
(k)
Cash Collateralization Following Termination of the Revolving Facility. Notwithstanding anything to
the contrary herein, in the event of the prepayment in full of all outstanding Revolving Facility Loans and the termination of all Revolving
Facility Commitments (a “Revolving Facility Termination Event”) in connection with which the Borrower notifies any one or more Issuing
Banks that it intends to maintain one or more Letters of Credit initially issued under this Agreement in effect after the date of such
Revolving Facility Termination Event (each, a “Continuing Letter of Credit”), then the security interest of the Collateral Agent in the
Collateral under the Security Documents may be terminated in accordance with Section 9.18 if each such Continuing Letter of Credit is
Cash Collateralized in an amount equal to the Minimum L/C Collateral Amount, which shall be deposited with or at the direction of each
such Issuing Bank.
(l)
Additional Issuing Banks. From time to time, the Borrower may by notice to the Administrative
Agent designate any Lender (in addition to the initial Issuing Banks) each of which agrees (in its sole discretion) to act in such capacity and
is reasonably satisfactory to the Administrative Agent as an Issuing Bank. Each such additional Issuing Bank shall execute a counterpart of
this Agreement upon the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall thereafter be
an Issuing Bank hereunder for all purposes.
provide to the Administrative Agent copies of any notice received from the Borrower
(m)
Reporting. Unless otherwise requested by the Administrative Agent, each Issuing Bank shall (i)
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pursuant to Section 2.05(b) no later than the next Business Day after receipt thereof and (ii) report in writing to the Administrative Agent
(A) on or prior to each Business Day on which such Issuing Bank expects to issue, amend or extend any Letter of Credit, the date of such
issuance, amendment or extension, and the aggregate face amount of the Letters of Credit to be issued, amended or extended by it and
outstanding after giving effect to such issuance, amendment or extension occurred (and whether the amount thereof changed), and such
Issuing Bank shall be permitted to issue, amend or extend such Letter of Credit if the Administrative Agent shall not have advised such
Issuing Bank that such issuance, amendment or extension would not be in conformity with the requirements of this Agreement, (B) on each
Business Day on which such Issuing Bank makes any L/C Disbursement, the date of such L/C Disbursement and the amount of such L/C
Disbursement and (C) on any other Business Day, such other information with respect to the outstanding Letters of Credit issued by such
Issuing Bank as the Administrative Agent shall reasonably request.
Section 2.06
Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., Local Time, to the account of the Administrative Agent
most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an account or accounts designated by the Borrower as specified in
the applicable Borrowing Request; provided, that ABR Revolving Loans made to finance the reimbursement of a L/C Disbursement and
reimbursements as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(b)
Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date
of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in accordance with clause (a) of this
Section 2.06 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of (A) the Federal Funds Effective Rate and
(B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationOvernight Rate or
(ii) in the case of a payment to be made by the Borrower, the interest rate applicable to ABR Loans at such time. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.
(c)
The foregoing notwithstanding, the Administrative Agent, in its sole discretion, may from its own
funds make a Revolving Facility Loan on behalf of the Lenders. In such event, the applicable Lenders on behalf of whom the
Administrative Agent made the Revolving Facility Loan shall reimburse the Administrative Agent for all or any portion of such Revolving
Facility Loan made on its behalf upon written notice given to each applicable Lender not later than 2:00 p.m., Local Time, on the Business
Day such reimbursement is requested. The entire amount of interest attributable to such Revolving Facility Loan for the period from and
including the date on which such Revolving Facility Loan was made on such Lender’s behalf to but excluding the date the Administrative
Agent is reimbursed in respect of such Revolving Facility Loan by such Lender shall be paid to the Administrative Agent for its own
account.
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Section 2.07
Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a EurocurrencySOFR Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of
a EurocurrencySOFR Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b)
To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent in
writing of such election by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a
Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or electronic means to the Administrative Agent of a written Interest
Election Request signed by the Borrower.
Section 2.02:
(c)
Each written Interest Election Request shall specify the following information in compliance with
the Borrowing to which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which
case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(i)
be a Business Day;
(ii)
the effective date of the election made pursuant to such Interest Election Request, which shall
Borrowing; and
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a EurocurrencySOFR
if the resulting Borrowing is a EurocurrencySOFR Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest
Period.”
(iv)
If any such Interest Election Request requests a EurocurrencySOFR Borrowing but does not specify an Interest Period, then the Borrower
shall be deemed to have selected an Interest Period of one month’s duration. If less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing shall be in an integral multiple of the Borrowing Multiple and not
less than the Borrowing Minimum and satisfy the limitations specified in Section 2.02(c) regarding the maximum number of Borrowings of
the relevant Type.
Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise
each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.
(d)
If
(e)
the Borrower fails
to a
EurocurrencySOFR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request
through electronic means) of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing, (i) no
outstanding Borrowing may be converted to or continued as a
timely Interest Election Request with respect
to deliver a
69
EurocurrencySOFR Borrowing and (ii) unless repaid, each EurocurrencySOFR Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto.
Section 2.08
Termination and Reduction of Commitments. (a) Unless previously terminated, the Revolving Facility
Commitments of each Class shall terminate on the applicable Revolving Facility Maturity Date for such Class. On the Closing Date (after
giving effect to the funding of the Term A Loans to be made on such date), the Term A Loan Commitments of each Lender as of the Closing
Date will terminate.
(b)
The Borrower may at any time terminate, or from time to time reduce, the Revolving Facility
Commitments of any Class; provided, that (i) each reduction of the Revolving Facility Commitments of any Class shall be in an amount that
is an integral multiple of $250,000 and not less than $1,000,000 (or, if less, the remaining amount of the Revolving Facility Commitments
of such Class) and (ii) the Borrower shall not terminate or reduce the Revolving Facility Commitments of any Class if, after giving effect to
any concurrent prepayment of the Revolving Facility Loans in accordance with Section 2.11 and any Cash Collateralization of Letters of
Credit in accordance with Section 2.05(j) or (k), the Revolving Facility Credit Exposure of such Class (excluding any Cash Collateralized
Letter of Credit) would exceed the total Revolving Facility Commitments of such Class.
(c)
The Borrower shall notify the Administrative Agent of any election to terminate or reduce the
Revolving Facility Commitments of any Class under paragraph (b) of this Section 2.08 at least three Business Days prior to the effective
date of such termination or reduction (or such shorter period acceptable to the Administrative Agent), specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.08 shall be irrevocable; provided, that a notice of
termination or reduction of the Revolving Facility Commitments of any Class delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, indentures or similar agreements or other transactions, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition
is not satisfied (or waived by the Borrower in its sole discretion) and/or rescinded at any time by the Borrower if the Borrower determines
in its sole discretion that any or all of such conditions will not be satisfied (or waived). Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their
respective Commitments of such Class.
Section 2.09
Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay (i)
to the Administrative Agent for the account of each Revolving Facility Lender the then unpaid principal amount of each Revolving Facility
Loan to the Borrower on the Revolving Facility Maturity Date applicable to such Revolving Facility Loans and (ii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each Term Loan of such Lender as provided in Section 2.10.
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(b)
(c)
The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan
made hereunder, the Facility and Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) any amount received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
70
(d)
The entries made in the accounts maintained pursuant to clause (b) or (c) of this Section 2.09 shall be
prima facie evidence of the existence and amounts of the obligations recorded therein; provided, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e)
Any Lender may request that Loans made by it be evidenced by a promissory note (a “Note”). In
such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by
such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and reasonably acceptable to
the Borrower. Thereafter, unless otherwise agreed to by the applicable Lender, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the payee named therein (or, if requested by such payee, to such payee and its registered assigns).
Section 2.10 and to Section 9.08(e),
Section 2.10
Repayment of Term Loans and Revolving Facility Loans. (a) Subject to the other clauses of this
(i)
the Borrower shall repay Term A Loans incurred on the Closing Date on the last day of each
March, June, September and December of each year (commencing with the fiscal quarter of the Borrower ending September 30,
2020) and on the applicable Term Facility Maturity Date or, if any such date is not a Business Day, on the next preceding Business
Day (each such date being referred to as a “Term A Loan Installment Date”), in an aggregate principal amount of such Term A
Loans equal to (A) in the case of quarterly payments due prior to the applicable Term Facility Maturity Date for each month set
forth below, an amount equal to the percentage of the aggregate principal amount of such Term A Loans outstanding immediately
after the Closing Date set forth opposite such month and (B) in the case of such payment due on the applicable Term Facility
Maturity Date, an amount equal to the then unpaid principal amount of such Term A Loans outstanding;
Month
December 2020
March 2021
June 2021
September 2021
December 2021
March 2022
June 2022
September 2022
December 2022
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Percentage
1.25%
1.25%
1.25%
1.25%
1.25%
1.25%
1.25%
1.25%
1.25%
March 2023
June 2023
September 2023
December 2023
March 2024
June 2024
September 2024
December 2024
2.50%
2.50%
2.50%
2.50%
2.50%
2.50%
2.50%
2.50%
72
in the event that any Incremental Term Loans are made, the Borrower shall repay such
Incremental Term Loans on the dates and in the amounts set forth in the related Incremental Assumption Agreement (each such date
being referred to as an “Incremental Term Loan Installment Date”); and
(ii)
(iii)
applicable Term Facility Maturity Date.
to the extent not previously paid, outstanding Term Loans shall be due and payable on the
(b)
To the extent not previously paid, outstanding Revolving Facility Loans shall be due and payable on
the applicable Revolving Facility Maturity Date.
(c)
Prepayment of the Loans from:
(i)
all Net Proceeds pursuant to Section 2.11(b) shall be allocated to the Class or Classes of Term
Loans determined pursuant to Section 2.10(d), with the application thereof to reduce in direct order amounts due on the succeeding
Term Loan Installment Dates under such Classes as provided in the remaining scheduled amortization payments under such Classes;
provided that, any Lender, at its option, may elect to decline the full amount of such prepayment of any Term Loan held by it if it
shall give written notice to the Administrative Agent thereof by 5:00 p.m. Local Time at least three Business Days prior to the date
of such prepayment (any such Lender, a “Declining Lender”) and on the date of any such prepayment, any amounts that would
otherwise have been applied to prepay Term Loans owing to Declining Lenders shall instead be retained by the Borrower for
application for any purpose not prohibited by this Agreement, and
any optional prepayments of the Term Loans pursuant to Section 2.11(a) shall be applied to
the remaining installments of the Term Loans under the applicable Class or Classes as the Borrower may in each case direct (and
absent such direction, in direct order of maturity).
(ii)
(d)
Any mandatory prepayment of Term Loans pursuant to Section 2.11(b) shall be applied so that the
aggregate amount of such prepayment is allocated among the Term A Loans and the Other Term Loans, if any, pro rata based on the
aggregate principal amount of outstanding Term A Loans and Other Term Loans, if any. Prior to any prepayment of any Loan under any
Facility hereunder, the Borrower shall select the Borrowing or Borrowings under the applicable Facility to be prepaid and shall notify the
Administrative Agent of such selection in writing in the form of Exhibit L not later than 2:00 p.m., Local Time, (i) in the case of an ABR
Borrowing, at least one Business Day before the scheduled date of such prepayment and (ii) in the case of a EurocurrencySOFR Borrowing,
at least three U.S. Government Securities Business Days before the scheduled date of such prepayment (or, in each case, such shorter period
acceptable to the Administrative Agent); provided that a notice of prepayment may state that such notice is conditioned upon the
effectiveness of other credit facilities, indentures or similar agreements or other transactions, in which case such notice may be revoked by
the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied (or waived
by the Borrower in its sole discretion) and/or rescinded at any time by the Borrower if the Borrower determines in its sole discretion that
any or all of such conditions will not be satisfied (or waived). Each repayment of a Borrowing (x) in the case of the Revolving Facility of
any Class, shall be applied to the Revolving Facility Loans included in the repaid Borrowing such that each Revolving Facility Lender
receives its ratable share of such repayment (based upon the respective Revolving Facility Credit Exposures of the Revolving Facility
Lenders of such Class at the time of such repayment) and (y) in all other cases, shall be applied ratably to the Loans included in the repaid
Borrowing. All repayments of
73
Loans shall be accompanied by accrued interest on the amount repaid to the extent required by Section 2.13(d).
Section 2.11
Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to
prepay any Loan in whole or in part, without premium or penalty (but subject to Section 2.16), in an aggregate principal amount that is an
integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior
notice in accordance with Section 2.10(d).
(b)
The Borrower shall apply all Net Proceeds promptly upon receipt thereof to prepay Term Loans in
accordance with clauses (c) and (d) of Section 2.10. Notwithstanding the foregoing, the Borrower may use a portion of such Net Proceeds
to prepay or repurchase any Other First Lien Debt, in each case in an amount not to exceed the product of (x) the amount of such Net
Proceeds and (y) a fraction, (A) the numerator of which is the outstanding principal amount of such Other First Lien Debt and (B) the
denominator of which is the sum of the outstanding principal amount of such Other First Lien Debt and the outstanding principal amount of
all Classes of Term Loans.
(c)
[Reserved].
(d)
Notwithstanding any other provisions of this Section 2.11 to the contrary, (i) to the extent that any or
all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary would otherwise be required to be applied pursuant to Section 2.11(b) but
is prohibited, restricted or delayed by applicable local law from being repatriated to the United States of America (as determined in good
faith by the Borrower), the portion of such Net Proceeds so affected will not be required to be applied to repay Term Loans or Other First
Lien Debt at the times provided in Section 2.11(b) but may be retained by the applicable Foreign Subsidiary and (ii) to the extent that the
Borrower has determined in good faith that repatriation of any or all of such Net Proceeds that would otherwise be required to be applied
pursuant to Section 2.11(b) would have a material adverse tax consequence with respect to such Net Proceeds, the Net Proceeds so affected
may be retained by the applicable Foreign Subsidiary (the Borrower hereby agreeing to cause the applicable Subsidiary to promptly use
commercially reasonable efforts to take all actions within the reasonable control of the Borrower that are reasonably required to eliminate
such tax effects).
(e)
In the event that the aggregate amount of Revolving Facility Credit Exposure of any Class exceeds the
total Revolving Facility Commitments of such Class (other than as a result of changes in currency exchange rates), the Borrower shall
prepay Revolving Facility Borrowings of such Class (or, if no such Borrowings are outstanding, provide Cash Collateral in respect of
outstanding Letters of Credit pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
In the event that the Revolving L/C Exposure exceeds the Letter of Credit Sublimit (other than as a
result of changes in currency exchange rates), at the request of the Administrative Agent, the Borrower shall provide Cash Collateral
pursuant to Section 2.05(j) in an aggregate amount equal to such excess.
(f)
(g)
If as a result of changes in currency exchange rates, on any Revaluation Date, (i) the total Revolving
Facility Credit Exposure of any Class exceeds the total Revolving Facility Commitments of such Class or (ii) the Revolving L/C Exposure
exceeds the Letter of Credit Sublimit, the Borrower shall, at the request of the Administrative Agent, within ten (10) days of such
Revaluation Date (A) prepay Revolving Facility Borrowings or (B) provide Cash Collateral pursuant to Section 2.05(j), in an aggregate
amount such that the applicable exposure does not exceed the applicable commitment sublimit or amount set forth above.
74
Section 2.12
Fees. (a) The Borrower agrees to pay to each Lender (other than any Defaulting Lender), through the
Administrative Agent, on the date that is three Business Days after the last day of March, June, September and December in each year and on
the date on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a commitment fee (a
“Commitment Fee”) on the daily amount of the applicable Available Unused Commitment of such Lender during the preceding quarter (or
other period commencing with the Closing Date or ending with the date on which the last of the Commitments of such Lender shall be
terminated) at a rate equal to the Applicable Commitment Fee accrued up to the last Business Day of each March, June, September and
December. All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The
Commitment Fee due to each Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the last of
the Commitments of such Lender shall be terminated as provided herein.
(b)
The Borrower from time to time agrees to pay (i) to each Revolving Facility Lender of each Class
(other than any Defaulting Lender), through the Administrative Agent, on the date that is three Business Days after the last day of March,
June, September and December of each year and on the date on which the Revolving Facility Commitments of all the Lenders shall be
terminated as provided herein, a fee in Dollars (an “L/C Participation Fee”) on such Lender’s Revolving Facility Percentage of the daily
aggregate Revolving L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C Disbursements) of such Class, during
the preceding quarter (or shorter period commencing with the Closing Date or ending with the Revolving Facility Maturity Date or the date
on which the Revolving Facility Commitments of such Class shall be terminated) at the rate per annum equal to the Applicable Margin for
Eurocurrency Revolving FacilitySOFR Borrowings of such Class under the Revolving Facility effective for each day in such period accrued
up to the last Business Day of each March, June, September and December, and (ii) to each Issuing Bank, for its own account (x) on the
date that is three Business Days after the last day of March, June, September and December of each year and on the date on which the
Revolving Facility Commitments of all the Lenders shall be terminated, a fronting fee in respect of each Letter of Credit issued by such
Issuing Bank for the period from and including the date of issuance of such Letter of Credit to and including the termination of such Letter
of Credit, computed at a rate equal to 1/8 of 1.00% per annum of the Dollar Equivalent of the daily stated amount of such Letter of Credit,
plus (y) in connection with the issuance, amendment or transfer of any such Letter of Credit or any L/C Disbursement thereunder, such
Issuing Bank’s customary documentary and processing fees and charges (collectively, “Issuing Bank Fees”). All L/C Participation Fees and
Issuing Bank Fees that are payable on a per annum basis shall be computed on the basis of the actual number of days elapsed in a year of
360 days.
The Borrower agrees to pay to the Administrative Agent, for the account of the Administrative Agent,
an administration fee in an amount and at times as separately agreed between the Borrower and the Administrative Agent (the
“Administrative Agent Fees”).
(c)
Applicable Margin.
Section 2.13
Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at the ABR plus the
RateTerm SOFR for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(b)
The Loans comprising each EurocurrencySOFR Borrowing shall bear interest at the Adjusted LIBO
(c)
Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or other amount
payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus
the rate otherwise
75
applicable to such Loan as provided in the preceding clauses of this Section 2.13 or (ii) in the case of any other overdue amount, 2.00% plus
the rate applicable to ABR Loans as provided in clause (a) of this Section; provided, that this clause (c) shall not apply to any Event of
Default that has been waived by the Lenders pursuant to Section 9.08.
(d)
Accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment Date for such
Loan, (ii) in the case of Revolving Facility Loans, upon termination of the applicable Revolving Facility Commitments and (iii) in the case
of the Term Loans, on the applicable Term Facility Maturity Date; provided, that (A) interest accrued pursuant to clause (c) of this Section
2.13 shall be payable on demand, (B) in the event of any repayment or prepayment of any Loan (other than a prepayment of a Revolving
Facility Loan that is an ABR Loan that is not made in conjunction with a permanent commitment reduction), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (C) in the event of any conversion of
any EurocurrencySOFR Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e)
All interest hereunder shall be computed on the basis of a year of 360 days, except that interest
computed by reference to the ABR at times when the ABR is based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding
the last day). The applicable ABR, Adjusted LIBO Rate or LIBO RateTerm SOFR or Term SOFR shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest error.
(a)
In connection with the use or administration of Term SOFR, the Administrative Agent will have the
right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document,
any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to
this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Borrower and the Lenders of the
effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.
Section 2.14
Alternate Rate of InterestChanged Circumstances.
(a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowing:
(a)
(i) Circumstances Affecting Benchmark Availability. Subject to clause (c) below, in connection with
any request for a SOFR Loan or a conversion to or continuation thereof or otherwise, if for any reason (i) the Administrative Agent
determinesshall determine (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable
and adequate means do not exist for ascertaining the Adjusted LIBO Rate forAdjusted Term SOFR for the applicable Interest Period
with respect to a proposed SOFR Loan on or prior to the first day of such Interest Period; or
(ii) (ii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period willshall
determine (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR does not adequately and
fairly reflect the cost to such Lenders of making or maintaining theirsuch Loans included in such Borrowing forduring such Interest Period;
and, in the case of clause (ii), the Required Lenders have provided notice of such determination to the Administrative Agent, then, in each
case, the Administrative Agent shall promptly give notice thereof to the Borrower. Upon notice thereof by the Administrative Agent to the
Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to convert any Loan to or continue any Loan
76
as a SOFR Loan, shall be suspended (to the extent of the affected SOFR Loans or the affected Interest Periods) until the Administrative
Agent (with respect to clause (ii), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the
Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected
SOFR Loans or the affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request
for a borrowing of or conversion to ABR Loans in the amount specified therein and (B) any outstanding affected SOFR Loans will be
deemed to have been converted into ABR Loans at the end of the applicable Interest Period. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to
Section 2.16.
(b)
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by electronic means as promptly
as practicable thereafter and, untilLaws Affecting SOFR Availability. If, after the date hereof, the introduction of, or any change in, any
Applicable Law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or
comparable agency, shall make it unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any SOFR Loan, or to determine or charge interest based upon SOFR, the Term SOFR Reference
Rate, Adjusted Term SOFR or Term SOFR, such Lender shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrower and the other Lenders (an “Illegality Notice”). Thereafter, until each
affected Lender notifies the Administrative Agent and the Administrative Agent notifies the Borrower and the Lenders that the circumstances
giving rise to such noticedetermination no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued
asobligation of the Lenders to make SOFR Loans, and any right of the Borrower to convert any Loan to a SOFR Loan or continue any Loan
as a SOFR Loan, shall be suspended and (ii) if necessary to avoid such illegality, the Administrative Agent shall compute the ABR without
reference to clause (c) of the definition of “ABR”. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such
illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all SOFR Loans to ABR
Loans (in each case, if necessary to avoid such illegality, the Administrative Agent shall compute the ABR without reference to clause (c) of
the definition of “ABR”), on the last day of the Interest Period applicable thereto an ABR Borrowing, and (ii) if any Borrowing Request
requests a Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing.therefor, if all affected Lenders may lawfully
continue to maintain such SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such SOFR Loans
to such day. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted,
together with any additional amounts required pursuant to Section 2.16.
(c)
Benchmark Replacement Setting.
(i)
(b) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document,
upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent
and the Borrower may amend this Agreement to replace the LIBO Ratethen-current Benchmark with a Benchmark
Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on
the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders
and the Borrower unlessso long as the Administrative Agent has not received, by such time, written notice of objection
77
to such amendment from Lenders comprising the Required Lenders of each Class. Any such amendment with
respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders of
each Class have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment.
No replacement of the LIBO Ratea Benchmark with a Benchmark Replacement pursuant to this Section 2.14(c)(i)(A) will
occur prior to the applicable Benchmark Transition Start Date.
(ii)
(c) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or
implementation of a Benchmark Replacement, the Administrative Agent and the Borrower will have the right to make Benchmark
Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan
Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any
further action or consent of any other party to this Agreement or any other Loan Document.
(iii)
(d) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the
Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its
related Benchmark Replacement Date and Benchmark Transition Start Date, (iiA) the implementation of any Benchmark
Replacement, and (iiiB) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or
conclusion of any Benchmark Unavailability Periodin connection with the use, administration, adoption or implementation of a
Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any
tenor of a Benchmark pursuant to Section 2.14(c)(iv). Any determination, decision or election that may be made by the
Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14(c), including any
determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date
and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and
may be made in its or their sole discretion and without consent from any other party heretoto this Agreement or any other Loan
Document, except, in each case, as expressly required pursuant to this Section 2.14(c).
(iv)
Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan
Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current
Benchmark is a term rate (including the Term SOFR Reference Rate) and either (1) any tenor for such Benchmark is not displayed
on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its
reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or
publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the
Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark
settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to
clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark
Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark
(including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar
or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
78
(v)
(e) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a
Benchmark Unavailability Period, (A) the Borrower may revoke any pending request for a Eurocurrency Loanborrowing of,
conversion to or continuation of EurocurrencySOFR Loans to be made, converted or continued during any Benchmark
Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a
Borrowingborrowing of or conversion to ABR Loans and (B) any outstanding affected SOFR Loans will be deemed to have been
converted to ABR Loans at the end of the applicable Interest Period. During any Benchmark Unavailability Period or at any time
that a tenor for the then-current Benchmark is not an Available Tenor, the component of the ABR based upon the LIBO Ratethen-
current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the ABR.
Section 2.15
Increased Costs. (a) If any Change in Law shall:
(i)
impose, modify or deem applicable any reserve (including pursuant to regulations issued from
time to time by the FRB for determining the maximum reserve requirement (including any emergency, special, supplemental or
other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in
Regulation D of the FRB, as amended and in effect from time to time)), special deposit, compulsory loan, insurance charge or
similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated
in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or or any Issuing Bank; or
indemnifiable under Section 2.17 or (B) Excluded Taxes); or
(ii)
subject any Lender to any Tax with respect to any Loan Document (other than (A) Taxes
affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;
(iii)
impose on any Lender or Issuing Bank or the London interbank market any other condition
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any EurocurrencySOFR Loan (or
of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional
amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding capital requirements or
liquidity has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such
Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing
Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to
capital adequacy and liquidity), then from time to time the Borrower shall pay to such Lender or such Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding
company for any such reduction suffered.
compensate such Lender or Issuing Bank or its holding company, as applicable, as specified
(c)
A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to
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in clause (a) or (b) of this Section 2.15 shall be delivered to the Borrower and shall be conclusive absent manifest error; provided, that any
such certificate claiming amounts described in clause (x) or (y) of the definition of “Change in Law” shall, in addition, state the basis upon
which such amount has been calculated and certify that such Lender’s or Issuing Bank’s demand for payment of such costs hereunder, and
such method of allocation is not inconsistent with its treatment of other borrowers which, as a credit matter, are similarly situated to the
Borrower and which are subject to similar provisions. The Borrower shall pay such Lender or Issuing Bank, as applicable, the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d)
Promptly after any Lender or any Issuing Bank has determined that it will make a request for
increased compensation pursuant to this Section 2.15, such Lender or Issuing Bank shall notify the Borrower thereof. Failure or delay on
the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 2.15 shall not constitute a waiver of such Lender’s
or Issuing Bank’s right to demand such compensation; provided, that the Borrower shall not be required to compensate a Lender or an
Issuing Bank pursuant to this Section 2.15 for any increased costs or reductions incurred more than 180 days prior to the date that such
Lender or Issuing Bank, as applicable, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive
effect thereof.
Section 2.16
Break Funding Payments. In the event of (a) the payment of any principal of any EurocurrencyThe
Borrower hereby indemnifies each of the Lenders against any loss, cost or expense (including any loss, cost or expense arising from the
liquidation or reemployment of funds or from any fees payable) which may arise, be attributable to or result due to or as a consequence of (a)
any failure by the Borrower to make any payment when due of any amount due hereunder in connection with a SOFR Loan, (b) any failure
of the Borrower to borrow or continue a SOFR Loan or convert to a SOFR Loan on a date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation, (c) any failure of the Borrower to prepay any SOFR Loan on a date specified therefor in any notice of
prepayment (regardless of whether any such notice of prepayment may be revoked and is revoked), (d) any payment, prepayment or
conversion of any SOFR Loan on a date other than on the last day of anthe Interest Period applicable theretotherefor (including as a result of
an Event of Default), (b) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow (other than due to the default of the relevant Lender), convert, continue or prepay any Eurocurrency Loan on the date
specified in any notice delivered pursuant hereto or (de) the assignment of any EurocurrencySOFR Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurocurrency Loan, such loss, cost or
expense to any Lender shall be deemed to be the amount determined by such Lender (it being understood that the deemed amount shall not
exceed the actual amount) to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan
had such event not occurred, at the LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue a Eurocurrency Loan, for the
period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount
for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in Dollars
of a comparable amount and period from other banks in the eurocurrency market(b). A certificate of anysuch Lender setting forth anythe
basis for determining such amount or amounts thatnecessary to compensate such Lender is entitled to receive pursuant toshall be forwarded
to the Borrower through the Administrative Agent and shall be conclusively presumed to be correct save for manifest error. All of the
obligations of the Loan Parties under this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
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manifest errorsurvive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a
Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
Section 2.17
Taxes. (a) Any and all payments made by or on behalf of a Loan Party under this Agreement or any
other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes; provided that if
a Loan Party, the Administrative Agent or any other applicable withholding agent shall be required by applicable Requirement of Law to
deduct or withhold any Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as
are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable
withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and
in accordance with the applicable Requirement of Law, and (iii) to the extent withholding or deduction is required to be made on account of
Indemnified Taxes or Other Taxes, the sum payable by the Loan Party shall be increased as necessary so that after all required deductions and
withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 2.17) any
Lender (or where the Administrative Agent receives the payment for its own account, the Administrative Agent) receives an amount equal to
the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes or Other Taxes are
payable by a Loan Party, as promptly as possible thereafter, such Loan Party shall send to the Administrative Agent for its own account or for
the account of a Lender, as the case may be, a certified copy of an official receipt (or other evidence acceptable to the Administrative Agent
or such Lender, acting reasonably) received by the Loan Party showing payment thereof. Without duplication, after any payment of Taxes by
any Loan Party or the Administrative Agent to a Governmental Authority as provided in this Section 2.17, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of any return required by applicable Requirements of Law to report such payment
or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(b)
The Borrower shall timely pay any Other Taxes.
(c)
The Borrower shall indemnify and hold harmless the Administrative Agent and each Lender within 15
Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes imposed on the Administrative
Agent or such Lender, as applicable, as the case may be (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section 2.17), and any reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate
setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to the Borrower by a Lender
or by the Administrative Agent (as applicable) on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
(d)
Each Lender shall deliver to the Borrower and the Administrative Agent, at such time or times
reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by
applicable law and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may
be, to determine (i) whether or not any payments made hereunder or under any other Loan Document are subject to withholding of Taxes,
(ii) if applicable, the required rate of withholding or deduction, and (iii) such Lender’s entitlement to any available exemption from, or
reduction of, any such withholding of Taxes in respect of any payments to be made to such Lender by any Loan Party pursuant to any Loan
Document or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. In addition, any
Lender, if
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requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements.
made to the Borrower shall, to the extent it is legally eligible to do so:
(e)
Without limiting the generality of Section 2.17(d), each Foreign Lender with respect to any Loan
(i)
deliver to the Borrower and the Administrative Agent, prior to the date on which the first
payment to the Foreign Lender is due hereunder, two copies of (A) in the case of a Foreign Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” IRS Form W-
8BEN or W-8BEN-E, as applicable, (or any applicable successor form) (together with a certificate (substantially in the form of
Exhibit I hereto, such certificate, the “Non-Bank Tax Certificate”) certifying that such Foreign Lender is not a bank for purposes of
Section 881(c) of the Code, is not a “10-percent shareholder” (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a CFC related to the Borrower (within the meaning of Section 864(d)(4) of the Code), and that the interest
payments in question are not effectively connected with the conduct by such Lender of a trade or business within the United States
of America), (B) IRS Form W-8BEN or W-8BEN-E, as applicable, or Form W-8ECI (or any applicable successor form), in each
case properly completed and duly executed by such Foreign Lender claiming complete exemption from, or reduced rate of, U.S.
federal withholding tax on payments by the Borrower under this Agreement, (C) IRS Form W-8IMY (or any applicable successor
form) and all necessary attachments (including the forms described in clauses (A) and (B) above, provided that if the Foreign
Lender is a partnership, and one or more of the partners is claiming portfolio interest treatment, the Non-Bank Tax Certificate may
be provided by such Foreign Lender on behalf of such partners) or (D) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the
withholding or deduction required to be made; and
(ii)
deliver to the Borrower and the Administrative Agent two further copies of any such form or
certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete
or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower
and the Administrative Agent, and from time to time thereafter if reasonably requested by the Borrower or the Administrative
Agent.
promptly notify the Borrower and the Administrative Agent in writing of such Foreign Lender’s inability to do so.
Any Foreign Lender that becomes legally ineligible to update any form or certification previously delivered shall
Each person that shall become a Participant pursuant to Section 9.04 or a Lender pursuant to Section 9.04 shall,
upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 2.17(e);
provided that a Participant shall furnish all such required forms and statements solely to the person from which the related participation shall
have been purchased.
Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 2.17(e).
Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor
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In addition, the Administrative Agent shall deliver to the Borrower (x)(I) prior to the date on which the first
payment by the Borrower is due hereunder or (II) prior to the first date on or after the date on which such Administrative Agent becomes a
successor Administrative Agent pursuant to Section 8.09 on which payment by the Borrower is due hereunder, as applicable, two copies of a
properly completed and executed IRS Form W-9 certifying its exemption from U.S. federal backup withholding or such other properly
completed and executed documentation prescribed by applicable law certifying its entitlement to any available exemption from applicable
U.S. federal withholding taxes in respect of any payments to be made to such Administrative Agent by any Loan Party pursuant to any Loan
Document including, as applicable, an IRS Form W-8IMY certifying that the Administrative Agent is a U.S. branch and, with respect to
payments received by the Administrative Agent on behalf of a Lender, intends to be treated as a U.S. person for purposes of withholding
under Chapter 3 of the Code pursuant to Section 1.1441-1(b)(2)(iv) of the Treasury Regulations, and (y) on or before the date on which any
such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the
most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two
further copies of such documentation. Notwithstanding anything to the contrary, the Administrative Agent is not required to provide any
documentation that it is not legally eligible to provide as a result of any Change in Law occurring after the date hereof.
(f)
If any Lender or the Administrative Agent, as applicable, determines, in its sole discretion, that it has
received a refund of an Indemnified Tax or Other Tax for which a payment has been made by a Loan Party pursuant to this Agreement or
any other Loan Document, which refund in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is
attributable to such payment made by such Loan Party, then the Lender or the Administrative Agent, as the case may be, shall reimburse the
Loan Party for such amount (net of all reasonable out-of-pocket expenses of such Lender or the Administrative Agent, as the case may be,
and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the
Lender or Administrative Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after
such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have
been in if the Indemnified Tax or Other Tax giving rise to such refund had not been imposed in the first instance; provided that the Loan
Party, upon the request of the Lender or the Administrative Agent agrees to repay the amount paid over to the Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender or the Administrative Agent in the event
the Lender or the Administrative Agent is required to repay such refund to such Governmental Authority. In such event, such Lender or the
Administrative Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or
other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender or
the Administrative Agent may delete any information therein that it deems confidential). A Lender or the Administrative Agent shall claim
any refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a
claim. No Lender nor the Administrative Agent shall be obliged to make available its tax returns (or any other information relating to its
taxes that it deems confidential) to any Loan Party in connection with this clause (f) or any other provision of this Section 2.17.
(g)
If the Borrower determines that a reasonable basis exists for contesting an Indemnified Tax or Other
Tax for which a Loan Party has paid additional amounts or indemnification payments, each affected Lender or Agent, as the case may be,
shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower
shall indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by such person in connection with
any request made by the Borrower pursuant to this Section 2.17(g). Nothing in this Section 2.17(g) shall obligate any Lender or Agent to
take any action that such person, in its sole judgment, determines may result in a material detriment to such person.
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(h)
Each U.S. Lender shall deliver to the Borrower and the Administrative Agent two IRS Forms W-9 (or
substitute or successor form), properly completed and duly executed, certifying that such U.S. Lender is exempt from U.S. federal backup
withholding (i) on or prior to the Closing Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date
that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in the U.S. Lender’s circumstances requiring a
change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time
thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i)
If a payment made to any Lender or any Agent under this Agreement or any other Loan Document
would be subject to U.S. federal withholding tax imposed by FATCA if such Lender or such Agent were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such
Lender or such Agent shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or
times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA,
to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA or to determine the amount, if any,
to deduct and withhold from such payment. Solely for purposes of this Section 2.17(i), “FATCA” shall include any amendments made to
FATCA after the date of this Agreement.
of the Loans and all other amounts payable under any Loan Document.
(j)
The agreements in this Section 2.17 shall survive the termination of this Agreement and the payment
“applicable Requirement of Law” include FATCA.
For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank and the terms “applicable law” and
Section 2.18
Payments Generally; Pro Rata Treatment; Sharing of Set‑offs. (a) Unless otherwise specified, the
Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of L/C
Disbursements, or of amounts payable under Sections 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., Local Time, on the date when due,
in immediately available funds. Each such payment shall be made without condition or deduction for any defense, recoupment, set-off or
counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except payments to be made directly
to the applicable Issuing Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.05 shall be
made directly to the persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of
any other person to the appropriate recipient promptly following receipt thereof. Except as otherwise expressly provided herein, if any
payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments made
under the Loan Documents shall be made in Dollars (or, in the case of Alternate Currency Loans or Alternate Currency Letters of Credit, in
the applicable Alternate Currency). Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been
made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in
accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such
payment.
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(b)
Subject to Section 7.02, if at any time insufficient funds are received by and available to the
Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed L/C Disbursements, interest and fees then due
from the Borrower hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due from the Borrower
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (ii)
second, towards payment of unreimbursed L/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled
thereto in accordance with the amounts of unreimbursed L/C Disbursements then due to such parties, and (iii) third, towards payment of
principal then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then
due to such parties.
(c)
If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of, or interest on, any of its Term Loans, Revolving Facility Loans or participations in L/C Disbursements of a
given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving
Facility Loans and participations in L/C Disbursements of such Class and accrued interest thereon than the proportion received by any other
Lender entitled to receive the same proportion of such payment, then the Lender receiving such greater proportion shall purchase
participations in the Term Loans, Revolving Facility Loans and participations in L/C Disbursements of such Class of such other Lenders to
the extent necessary so that the benefit of all such payments shall be shared by all such Lenders entitled thereto ratably in accordance with
the principal amount of each such Lender’s respective Term Loans, Revolving Facility Loans and participations in L/C Disbursements of
such Class and accrued interest thereon; provided, that (i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this clause (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant. The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount of such participation.
(d)
Unless the Administrative Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the
amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as
applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing
Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensationOvernight Rate.
(e)
If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(d) or
(e), 2.06 or 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.
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Section 2.19
Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under
Section 2.15, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.17 or any event that gives rise to the operation of Section 2.20, then such Lender shall use reasonable efforts
to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.15 or 2.17 or mitigate the applicability of Section 2.20, as applicable, in the future and (ii)
would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in
any material respect. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b)
If (i) any Lender requests compensation under Section 2.15 or gives notice under Section 2.20, (ii) the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, or (iii) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require any such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if in respect of any Revolving Facility Commitment or Revolving
Facility Loan, the Issuing Banks), to the extent consent would be required under Section 9.04(b) for an assignment of Loans or
Commitments, as applicable, which consent, in each case, shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations in L/C Disbursements, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.15, payments required to be made pursuant to Section 2.17 or a notice given under Section 2.20, such assignment will result in a
reduction in such compensation or payments. Nothing in this Section 2.19 shall be deemed to prejudice any rights that the Borrower may
have against any Lender that is a Defaulting Lender. No action by or consent of the removed Lender shall be necessary in connection with
such assignment, which shall be immediately and automatically effective upon payment of such purchase price. In connection with any
such assignment the Borrower, Administrative Agent, such removed Lender and the replacement Lender shall otherwise comply with
Section 9.04, provided, that if such removed Lender does not comply with Section 9.04 within one Business Day after the Borrower’s
request, compliance with Section 9.04 shall not be required to effect such assignment.
(c)
If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed
amendment, waiver, discharge or termination which pursuant to the terms of Section 9.08 requires the consent of all of the Lenders affected
and with respect to which the Required Lenders shall have granted their consent, then the Borrower shall have the right (unless such Non-
Consenting Lender grants such consent) at its sole expense (including with respect to the processing and recordation fee referred to in
Section 9.04(b)(ii)(B)) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to (and any such Non-Consenting
Lender agrees that it shall, upon the Borrower’s request) assign its Loans and its Commitments (or, at the Borrower’s option, the Loans and
Commitments under the Facility that is the subject of the proposed amendment, waiver, discharge or termination) hereunder to one or more
assignees reasonably acceptable to (i) the Administrative Agent (unless such assignee is a Lender, an Affiliate of a Lender or an Approved
Fund) and (ii) if in respect of any Revolving Facility Commitment or Revolving Facility Loan, the Issuing Banks; provided, that: (a) all
Loan Obligations of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to
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such Non-Consenting Lender concurrently with such assignment, (b) the replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon, and (c) the replacement
Lender shall grant its consent with respect to the applicable proposed amendment, waiver, discharge or termination. No action by or
consent of the Non-Consenting Lender shall be necessary in connection with such assignment, which shall be immediately and
automatically effective upon payment of such purchase price. In connection with any such assignment the Borrower, Administrative Agent,
such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 9.04; provided, that if such Non-Consenting
Lender does not comply with Section 9.04 within one Business Day after the Borrower’s request, compliance with Section 9.04 shall not be
required to effect such assignment.
Section 2.20
Illegality. If any Lender reasonably determines that any Change in Law has made it unlawful, or that
any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable Lending Office to make
or maintain any EurocurrencySOFR Loans, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any
obligations of such Lender to make or continue EurocurrencySOFR Loans or to convert ABR Borrowings to EurocurrencySOFR Borrowings
shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall upon demand from such Lender (with a copy to the
Administrative Agent), convert all EurocurrencySOFR Borrowings of such Lender to ABR Borrowings, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such EurocurrencySOFR Borrowings to such day, or immediately, if such
Lender may not lawfully continue to maintain such Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so converted.
Section 2.21
Incremental Commitments; Extensions; Refinancing Term Loans; Replacement Revolving Facilities.
(a) The Borrower may, by written notice to the Administrative Agent from time to time, (except during the Covenant Adjustment Period),
establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to
exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating
thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any
Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any
Permitted Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the
definitive agreement with respect to such Permitted Acquisition, New Project, acquisition or similar Investment is entered into) from one or
more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide
such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that
(x) each Incremental Term Lender and each Incremental Revolving Facility Lender providing a commitment shall be subject to the approval
of the Administrative Agent (and, solely in the case of Incremental Revolving Facility Lenders, the Issuing Banks), to the extent the same
would be required for an assignment under Section 9.04 (which approvals shall not be unreasonably withheld) unless such Incremental Term
Lender is an existing Lender or such Incremental Revolving Facility Lender is an existing Revolving Facility Lender and (y) for the
avoidance of doubt, the Borrower shall not be permitted to establish Incremental Term Loan Commitments and/or Incremental Revolving
Facility Commitments or incur Incremental Loans during the Covenant Adjustment Period. Such notice shall set forth (i) the amount of the
Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being established (which shall be in minimum
increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser
amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental
Revolving Facility Commitments are anticipated to become effective, (iii) [reserved] and (iv)
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in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make
term loans with terms identical to Term A Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in
mandatory prepayments and/or other terms different from the Term A Loans (“Other Term Loans”).
(b)
The Borrower, the Administrative Agent (if applicable) and each Incremental Term Lender and/or
Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and
such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of
such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each
Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving
Facility Commitments; provided, that:
any commitments to make additional Term A Loans and/or any Incremental Revolving
Facility Commitments shall have the same terms as the Term A Loans or the Revolving Facility Commitments to make Initial
Revolving Loans, respectively,
(i)
in right of security with the Liens on the Collateral securing the Term A Loans,
(ii)
the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu
(iii)
(A) the final maturity date of any such Other Term Loans shall be no earlier than the Term A
Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and
ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental
Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term A Loans or (y) such other terms
(including as to guarantees and collateral but excluding covenants or other provisions applicable only to periods after the Latest
Maturity Date then in effect) as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent
any financial maintenance covenant is added for the benefit of any Other Term Loan, no consent shall be required from the
Administrative Agent or any Lender if such financial maintenance covenant is also added for the benefit of all Facilities then
outstanding),
the remaining Weighted Average Life to Maturity of the Term A Loans,
(iv)
the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than
the Incremental Revolving Facility Commitments and Incremental Revolving Loans incurred
pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the
Initial Revolving Loans,
(v)
except as to discounts and fees (which shall, subject to the other clauses of this proviso, be
determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Incremental Revolving
Facility Commitments and Incremental Revolving Loans shall have the same terms as the Initial Revolving Loans,
(vi)
(vii)
[reserved];
(viii)
(A) such Incremental Revolving Loans may participate on a pro rata basis or a less than pro
rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or
commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may
participate on
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a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term A Loans in any mandatory
prepayment hereunder; and
(A) there shall be no obligor in respect of any Incremental Term Loan Commitments or
Incremental Revolving Facility Commitments that is not a Loan Party and (B) there shall be no assets securing any Incremental
Term Loan, Incremental Revolving Loan or Incremental Commitment that do not constitute Collateral.
(ix)
Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to
the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or
Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or
any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall
be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished
to the other parties hereto.
(c)
Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving
Facility Commitment shall become effective under this Section 2.21, unless (i) on the date of such effectiveness, the conditions set forth in
clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and
executed by a Responsible Officer of the Borrower (or, if such Incremental Term Loan Commitment or Incremental Revolving Facility
Commitment is established for financing any Permitted Acquisition, New Project or any other acquisition or similar Investment that is
permitted by this Agreement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and be continuing or would
result therefrom) and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary
closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required
by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary
documents and filings (including amendments to the Mortgages and other Security Documents and title date-down and modification
endorsements, which, in the case of such amendments and title date-down and modification endorsements, may be delivered on a post-
closing basis to the extent permitted by the applicable Incremental Assumption Agreement) as the Administrative Agent may reasonably
request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility
Commitments are secured by the Collateral ratably with one or more Classes of then-existing Term Loans and Revolving Facility Loans.;
provided that, for the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, no Incremental Term Loan
Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 during the Covenant
Adjustment Period.
(d)
Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as
may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when
originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all
Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each
Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall
apply to any conversion of EurocurrencySOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the
foregoing.
Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which
provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time
(except during the Covenant Adjustment Period) by the
(e)
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Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an
offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to
the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as
applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with
individual Lenders from time to time (except during the Covenant Adjustment Period) to extend the maturity date of such Lender’s Loans
and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant
to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of
such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the
avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders
under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the
interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any
Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time
and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed
to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an
Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term
Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility
Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility
Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower
proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a
date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period
agreed to by the Administrative Agent in its reasonable discretion).
(f)
The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an
Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the
Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption
Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that
(i) except as to interest rates, fees and any other pricing terms, and amortization, final maturity date and participation in prepayments and
commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro
Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms
as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier
than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended
Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer
relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions
and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving
Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as
shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any
Issuing Bank, such terms as shall be reasonably satisfactory to such Issuing Bank, (v) any Extended Revolving Facility Commitments may
participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving Loans in any
voluntary or mandatory prepayment or commitment reduction
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hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata
basis) than the Term A Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement,
this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term
Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed
amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld)
and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving
Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding
such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon
effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility
Commitments. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, no Extension shall become
effective under this Section 2.21 during the Covenant Adjustment Period
(g)
Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be
automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically
designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such
Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of
such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be
deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h)
Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document
(including, without limitation, this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility
Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving
Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or
any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to
applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving
Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other
than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility
Commitment implemented thereby, (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect
thereof shall be Loan Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the
Collateral on a pari passu basis with all other Obligations relating to an existing Class of Term Loans of the relevant Loan Parties under this
Agreement and the other Loan Documents, (vi) no Issuing Bank shall be obligated to issue Letters of Credit under such Extended
Revolving Facility Commitments unless it shall have consented thereto and (vii) there shall be no obligor in respect of any such Extended
Term Loans or Extended Revolving Facility Commitments that is not a Loan Party.
(i)
Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata
Extension Offer; provided, that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer
to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing,
rounding and other adjustments.
provisions shall not be applicable to clauses (j) through (o) of this Section 2.21), the
(j)
Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which
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Borrower may by written notice to the Administrative Agent (except during the Covenant Adjustment Period) establish one or more
additional tranches of term loans under this Agreement (such loans, “Refinancing Term Loans”), the net cash proceeds of which are used to
Refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on
which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not earlier than five Business Days after
the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its
reasonable discretion); provided, that:
before and after giving effect to the borrowing of such Refinancing Term Loans on the
Refinancing Effective Date each of the conditions set forth in Section 4.01 shall be satisfied to the extent required by the relevant
Incremental Assumption Agreement governing such Refinancing Term Loans;
(i)
Facility Maturity Date of the refinanced Term Loans;
(ii)
the final maturity date of the Refinancing Term Loans shall be no earlier than the Term
than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iii)
the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter
the aggregate principal amount of the Refinancing Term Loans shall not exceed the
outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including
original issue discount) and accrued interest associated therewith;
(iv)
(v)
all other terms applicable to such Refinancing Term Loans (other than provisions relating to
original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or
redemption terms, which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) taken
as a whole shall either (A) reflect market terms and conditions (taken as a whole) at the time of incurrence, as determined by the
Borrower in good faith or (B) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than,
the terms, taken as a whole, applicable to the Term A Loans (except to the extent such covenants and other terms apply solely to any
period after the Term A Facility Maturity Date or are otherwise reasonably acceptable to the Administrative Agent, it being
understood that, to the extent any financial maintenance covenant is added for the benefit of any Refinancing Term Loan, no
consent shall be required from the Administrative Agent or any Lender if such financial maintenance covenant is also added for the
benefit of all Facilities then outstanding), as determined by the Borrower in good faith;
with respect to Refinancing Term Loans secured by Liens on the Collateral that rank pari
passu or junior in right of security to the Liens thereon securing the Term A Loans, such Liens will be subject to a Permitted Pari
Passu Intercreditor Agreement or Permitted Junior Intercreditor Agreement, as applicable; and
(vi)
Party and (B) there shall be no assets securing any Refinancing Term Loan that do not constitute Collateral.; and
(vii)
(A) there shall be no obligor in respect of such Refinancing Term Loans that is not a Loan
Refinancing Term Loans shall become effective under this Section 2.21 during the Covenant Adjustment Period.
(i)
for the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, no
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In addition, notwithstanding the foregoing, the Borrower may (except during the Covenant Adjustment Period) establish
Refinancing Term Loans to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving
Facility Loans are outstanding under such Revolving Facility Commitments at the time of incurrence of such Refinancing Term Loans), so
long as (1) the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Facility Commitments
terminated at the time of incurrence thereof, (2) if the Revolving Facility Credit Exposure outstanding on the Refinancing Effective Date
would exceed the aggregate amount of Revolving Facility Commitments outstanding in each case after giving effect to the termination of
such Revolving Facility Commitments, the Borrower shall take one or more actions such that such Revolving Facility Credit Exposure does
not exceed such aggregate amount of Revolving Facility Commitments in effect on the Refinancing Effective Date after giving effect to the
termination of such Revolving Facility Commitments (it being understood that (x) such Refinancing Term Loans may be provided by the
Lenders holding the Revolving Facility Commitments being terminated and/or by any other person that would be a permitted Assignee
hereunder and (y) the proceeds of such Refinancing Term Loans shall not constitute Net Proceeds hereunder), (3) the Weighted Average Life
to Maturity of the Refinancing Term Loans (disregarding any customary amortization for this purpose) shall be no shorter than the remaining
life to termination of the terminated Revolving Facility Commitments, (4) the final maturity date of the Refinancing Term Loans shall be no
earlier than the termination date of the terminated Revolving Facility Commitments and (5) all other terms applicable to such Refinancing
Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional
prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Borrower and the Lenders providing such
Refinancing Term Loans) taken as a whole shall either (A) reflect market terms and conditions (taken as a whole) at the time of incurrence, as
determined by the Borrower in good faith or (B) be substantially similar to, or not materially less favorable to the Borrower and its
Subsidiaries than, the terms, taken as a whole, applicable to the Term A Loans (except to the extent such covenants and other terms apply
solely to any period after the Term A Facility Maturity Date or are otherwise reasonably acceptable to the Administrative Agent, it being
understood that, to the extent any financial maintenance covenant is added for the benefit of any Refinancing Term Loan, no consent shall be
required from the Administrative Agent or any Lender if such financial maintenance covenant is also added for the benefit of all Facilities
then outstanding), as determined by the Borrower in good faith.
(k)
The Borrower may approach any Lender or any other person that would be a permitted Assignee
pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to
provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan.
Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all
purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Incremental
Assumption Agreement governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term
Loans made to the Borrower.
(l)
Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which
provisions shall not be applicable to clauses (l) through (o) of this Section 2.21), the Borrower may (except during the Covenant Adjustment
Period) by written notice to the Administrative Agent establish one or more additional Facilities providing for revolving commitments
(“Replacement Revolving Facilities” and the commitments thereunder, “Replacement Revolving Facility Commitments” and the revolving
loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Facility Commitments under
this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower
proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five Business
Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative
Agent in its reasonable discretion); provided that:
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(i)
before and after giving effect to the establishment of such Replacement Revolving Facility
Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.01 shall be
satisfied to the extent required by the relevant Incremental Assumption Agreement governing such Replacement Revolving Facility
Commitments;
(ii)
after giving effect to the establishment of any Replacement Revolving Facility Commitments
and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of
Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding
immediately prior to the applicable Replacement Revolving Facility Effective Date;
no Replacement Revolving Facility Commitments shall have a final maturity date (or require
commitment reductions or amortizations) prior to the Revolving Facility Maturity Date in effect at the time of incurrence for the
Revolving Facility Commitments being replaced,
(iii)
(iv)
all other terms applicable to such Replacement Revolving Facility (other than provisions
relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms
which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and
(y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the
Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the
replacement issuing bank, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall either (A)
reflect market terms and conditions (taken as a whole) at the time of incurrence or establishment, as determined by the Borrower in
good faith or (B) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms,
taken as a whole, applicable to the Initial Revolving Loans (except to the extent such covenants and other terms apply solely to any
period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to
the Administrative Agent, it being understood that, to the extent any financial maintenance covenant is added for the benefit of any
Replacement Revolving Facility, no consent shall be required from the Administrative Agent or any Lender if such financial
maintenance covenant is also added for the benefit of the Initial Revolving Loan); and
Loan Party and (B) there shall be no assets securing any Replacement Revolving Facility that do not constitute Collateral.; and
(v)
(A) there shall be no obligor in respect of such Replacement Revolving Facility that is not a
Replacement Revolving Facilities shall become effective under this Section 2.21 during the Covenant Adjustment Period
(ii)
for the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, no
In addition, the Borrower may (except during the Covenant Adjustment Period) establish Replacement Revolving Facility
Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with
the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility
Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof (it being understood that such
Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other
person that would be a permitted Assignee hereunder) so long as (1) before and after giving effect to the establishment such Replacement
Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.01 shall
be satisfied to the extent required by the relevant agreement
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governing such Replacement Revolving Facility Commitments, (2) the remaining life to termination of such Replacement Revolving Facility
Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (3) the final
termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the
refinanced Term Loans, (4) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security
to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement and (5) the requirement of clause (v)
in the preceding sentence shall be satisfied mutatis mutandis. Solely to the extent that an Issuing Bank is not a replacement issuing bank
under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required to issue any letters of credit
under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank at the
time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory
to such Issuing Bank in its sole discretion. The Borrower agrees to reimburse each Issuing Bank in full upon demand, for any reasonable and
documented out-of-pocket cost or expense attributable to such withdrawal.
(m)
The Borrower may approach any Lender or any other person that would be a permitted Assignee of a
Revolving Facility Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Facility Commitments;
provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Facility Commitments may elect
or decline, in its sole discretion, to provide a Replacement Revolving Facility Commitment. Any Replacement Revolving Facility
Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Facility
Commitments for all purposes of this Agreement; provided that any Replacement Revolving Facility Commitments may, to the extent
provided in the applicable Incremental Assumption Agreement, be designated as an increase in any previously established Class of
Revolving Facility Commitments.
(n)
On any Replacement Revolving Facility Effective Date, subject to the satisfaction of the foregoing
terms and conditions, each of the Lenders with Replacement Revolving Facility Commitments of such Class shall purchase from each of the
other Lenders with Replacement Revolving Facility Commitments of such Class, at the principal amount thereof and in the applicable
currencies, such interests in the Replacement Revolving Loans and participations in Letters of Credit under such Replacement Revolving
Facility Commitments of such Class then outstanding on such Replacement Revolving Facility Effective Date as shall be necessary in order
that, after giving effect to all such assignments and purchases, the Replacement Revolving Loans and participations of such Replacement
Revolving Facility Commitments of such Class will be held by the Lenders thereunder ratably in accordance with their Replacement
Revolving Facility Commitments.
(o)
For purposes of this Agreement and the other Loan Documents, (i) if a Lender is providing a
Refinancing Term Loan, such Lender will be deemed to have an Incremental Term Loan having the terms of such Refinancing Term Loan
and (ii) if a Lender is providing a Replacement Revolving Facility Commitment, such Lender will be deemed to have an Incremental
Revolving Facility Commitment having the terms of such Replacement Revolving Facility Commitment. Notwithstanding anything to the
contrary set forth in this Agreement or any other Loan Document (including, without limitation, this Section 2.21), (i) the aggregate amount
of Refinancing Term Loans and Replacement Revolving Facility Commitments will not be included in the calculation of the Incremental
Amount, (ii) no Refinancing Term Loan or Replacement Revolving Facility Commitment is required to be in any minimum amount or any
minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Facility
Commitment at any time or from time to time other than those set forth in clauses (j) or (l) above, as applicable, and (iv) all Refinancing
Term Loans, Replacement Revolving Facility Commitments and all obligations in respect thereof shall be Obligations
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under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under
this Agreement and the other Loan Documents.
Notwithstanding anything in the foregoing to the contrary, (i) for the purpose of determining the number of outstanding
EurocurrencySOFR Borrowings upon the incurrence of any Incremental Loans, (x) to the extent the last date of Interest Periods for multiple
EurocurrencySOFR Borrowings under the Term Facilities fall on the same day, such EurocurrencySOFR Borrowings shall be considered a
single EurocurrencySOFR Borrowing and (y) to the extent the last date of Interest Periods for multiple EurocurrencySOFR Borrowings under
the Revolving Facilities fall on the same day, such EurocurrencySOFR Borrowings shall be considered a single EurocurrencySOFR
Borrowing and (ii) the initial Interest Period with respect to any EurocurrencySOFR Borrowing of Incremental Loans may, at the Borrower’s
option, be of a duration of a number of Business Days that is less than one month, and the Adjusted LIBO RateTerm SOFR with respect to
such initial Interest Period shall be the same as the Adjusted LIBO RateTerm SOFR applicable to any then-outstanding EurocurrencySOFR
Borrowing as the Borrower may direct, so long as the last day of such initial Interest Period is the same as the last day of the Interest Period
with respect to such outstanding EurocurrencySOFR Borrowing.
Defaulting Lender. (a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting
Lender, to the extent permitted by applicable law:
Section 2.22
Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of “Required
Lenders” or “Required Revolving Facility Lenders.”
(i)
(ii)
Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts
received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity,
following an Event of Default or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section
9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of
any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, second, to the payment on a pro rata basis of
any amounts owing by such Defaulting Lender to any Issuing Bank hereunder, third, to Cash Collateralize the Issuing Banks’
Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.05(j), fourth, as the Borrower may request
(so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed
to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting
Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing
Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this
Agreement, in accordance with Section 2.05(j), sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a
result of any judgment of a court of competent jurisdiction obtained by any Lender or Issuing Bank against such Defaulting Lender
as a result of such Defaulting Lender’s breach of its obligations under this Agreement, seventh, so long as no Default or Event of
Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent
jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement, and eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.22
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shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
any period during which that Lender is a Defaulting Lender.
(iii)
Certain Fees. (A) No Defaulting Lender shall be entitled to receive any Commitment Fee for
Each Defaulting Lender shall be entitled to receive L/C Participation Fees for any
period during which that Lender is a Defaulting Lender only to the extent allocable to its pro rata share of the stated amount of Letters of
Credit for which it has provided Cash Collateral.
(A)
(A)
With respect to any Commitment Fee or L/C Participation Fee not required to be
paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of
any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit that has
been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Bank the amount of any such fee
otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such Defaulting Lender, and
(z) not be required to pay the remaining amount of any such fee.
(iv)
Reallocation of Participations to Reduce Fronting Exposure. All or any part of such
Defaulting Lender’s participation in Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with
their respective pro rata Commitments (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent
that such reallocation does not cause the aggregate Revolving Facility Credit Exposure of any Non-Defaulting Lender to exceed
such Non-Defaulting Lender’s Revolving Facility Commitment. No reallocation hereunder shall constitute a waiver or release of
any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender,
including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such
reallocation.
(v)
Cash Collateral. If the reallocation described in clause (iv) above cannot, or can only
partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, within
three (3) Business Days following the written request of (i) the Administrative Agent or (ii) any Issuing Bank (with a copy to the
Administrative Agent), Cash Collateralize the Issuing Banks’ Fronting Exposure in accordance with the procedures set forth in
Section 2.05(j).
(b)
Defaulting Lender Cure. If the Borrower, the Administrative Agent and each Issuing Bank agree in
writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the
effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any
Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Facility Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded
participations in Letters of Credit to be held pro rata by the Lenders in accordance with their Revolving Facility Commitments (without
giving effect to Section 2.22(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that, no adjustments will be
made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting
Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
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New Letters of Credit. So long as any Lender is a Defaulting Lender, the Issuing Banks shall not be
required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving
effect thereto.
(c)
ARTICLE III
Representations and Warranties
On the date of each Credit Event, the Borrower represents and warrants to each of the Lenders that:
Section 3.01
Organization; Powers. Except as set forth on Schedule 3.01, each of the Borrower and each of the
Subsidiaries (a) is a partnership, limited liability company or corporation duly organized, validly existing and in good standing (or, if
applicable in a foreign jurisdiction, enjoys the equivalent status under the laws of any jurisdiction of organization outside the United States of
America) under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to own its property and assets and to
carry on its business as now conducted, (c) is qualified to do business in each jurisdiction where such qualification is required and (d) has the
power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower, to borrow and otherwise obtain credit
hereunder; except in each case of clauses (a) (other than with respect to the Borrower), (b) (other than with respect to the Borrower) and (c),
to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.
Section 3.02
Authorization. The execution, delivery and performance by the Borrower and each of the Subsidiary
Loan Parties of each of the Loan Documents to which it is a party and the borrowings hereunder (a) have been duly authorized by all
corporate, stockholder, partnership or limited liability company action required to be obtained by the Borrower and such Subsidiary Loan
Parties and (b) will not (i) violate (A) any provision of law, statute, rule or regulation applicable to the Borrower or any such Subsidiary Loan
Party, (B) the certificate or articles of incorporation or other constitutive documents (including any partnership, limited liability company or
operating agreements) or by-laws of the Borrower, or any such Subsidiary Loan Party, (C) any applicable order of any court or any rule,
regulation or order of any Governmental Authority applicable to the Borrower or any such Subsidiary Loan Party or (D) any provision of any
indenture, certificate of designation for preferred stock, agreement or other instrument to which the Borrower or any such Subsidiary Loan
Party is a party or by which any of them or any of their property is or may be bound, (ii) result in a breach of or constitute (alone or with due
notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation
(including any payment) under any such indenture, certificate of designation for preferred stock, agreement or other instrument, where any
such conflict, violation, breach or default referred to in clause (i) or (ii) of this Section 3.02(b), would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, or (iii) result in the creation or imposition of any Lien upon or with respect to any
property or assets now owned or hereafter acquired by the Borrower or any such Subsidiary Loan Party, other than the Liens created by the
Loan Documents and Permitted Liens, other than Liens created by the Loan Documents.
Section 3.03
Enforceability. This Agreement has been duly executed and delivered by the Borrower and constitutes,
and each other Loan Document when executed and delivered by the Borrower and each Subsidiary Loan Party that is party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable against the Borrower and such Subsidiary Loan Party as
applicable, in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of
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equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) implied covenants of good faith and
fair dealing and (iv) any foreign laws, rules and regulations as they relate to pledges of Equity Interests of Foreign Subsidiaries that are not
Loan Parties.
Section 3.04
Governmental Approvals. No action, consent or approval of, registration or filing with or any other
action by any Governmental Authority is or will be required for the execution, delivery or performance of each Loan Document to which the
Borrower or any Subsidiary Loan Party is a party, except for (a) the filing of Uniform Commercial Code financing statements, (b) filings with
the United States Patent and Trademark Office and the United States Copyright Office, (c) recordation of the Mortgages (if any), (d) such as
have been made or obtained and are in full force and effect, (e) such actions, consents and approvals the failure of which to be obtained or
made would not reasonably be expected to have a Material Adverse Effect and (f) filings or other actions listed on Schedule 3.04 and any
other filings or registrations required by the Security Documents.
Section 3.05
Financial Statements. (a) The audited consolidated balance sheets as of September 30, 2018 and
September 30, 2019 and the statements of operations, changes in equity and cash flows for the fiscal years ended September 30, 2017,
September 30, 2018 and September 30, 2019 for the Borrower and its consolidated subsidiaries, and (b) the unaudited consolidated balance
sheet and statement of operations, changes in equity and cash flows as of and for the sixth (6) month period ended March 31, 2020 for the
Borrower and its consolidated subsidiaries, including the notes thereto, if applicable, present fairly in all material respects the consolidated
financial position of the Borrower and its consolidated subsidiaries as of the dates and for the periods referred to therein and the results of
operations and, if applicable, cash flows for the periods then ended, and, except as set forth on Schedule 3.05, were prepared in accordance
with GAAP applied on a consistent basis throughout the periods covered thereby, except, in the case of interim period financial statements,
for the absence of notes and for normal year-end adjustments and except as otherwise noted therein.
No Material Adverse Effect. Since September 30, 2019, there has been no event or circumstance that,
individually or in the aggregate with other events or circumstances, has had or would reasonably be expected to have a Material Adverse
Effect.
Section 3.06
Section 3.07
Title to Properties; Possession Under Leases. (a) Each of the Borrower and the Subsidiaries has good
and marketable title in fee simple or equivalent to, or easements or valid leasehold interests in, or other limited property interests in, all its
Real Properties (including all Mortgaged Properties) and has valid title to its personal property and assets, in each case, except for Permitted
Liens and except for defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes and except where the failure to have such title would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than
Permitted Liens or Liens arising by operation of law.
(b)
The Borrower and each of the Subsidiaries has complied with all material obligations under all leases
to which it is a party, except where the failure to comply would not reasonably be expected to have Material Adverse Effect, and all such
leases are in full force and effect, except leases in respect of which the failure to be in full force and effect would not reasonably be
expected to have a Material Adverse Effect.
As of the Closing Date, none of the Borrower and the Subsidiaries has received any written notice of
any pending or contemplated condemnation proceeding affecting any material portion of the Mortgaged Properties or any sale or disposition
thereof in lieu of condemnation that remains unresolved as of the Closing Date, except as set forth on Schedule 3.07(c).
(c)
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As of the Closing Date, none of the Borrower and its Subsidiaries is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein, except as
permitted under Section 6.02 or 6.05 or as would not reasonably be expected to have a Material Adverse Effect.
(d)
(e)
Schedule 1.01(E) lists each Material Real Property owned by any Loan Party as of the Closing Date.
Subsidiaries. (a) Schedule 3.08(a) sets forth as of the Closing Date the name and jurisdiction of
incorporation, formation or organization of each Subsidiary of the Borrower and, as to each such Subsidiary, the percentage of each class of
Equity Interests owned by the Borrower or by any such Subsidiary.
Section 3.08
(b)
As of the Closing Date, after giving effect to the Transactions, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors (or entities
controlled by directors) and shares held by directors (or entities controlled by directors)) relating to any Equity Interests of any of the
Subsidiaries, except as set forth on Schedule 3.08(b).
Section 3.09
Litigation; Compliance with Laws. (a) There are no actions, suits or proceedings at law or in equity or
by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of the Borrower, threatened in writing
against the Borrower or any of the Subsidiaries or any business, property or rights of any such person (including those that involve any Loan
Document) that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, except for any action, suit
or proceeding at law or in equity or by or on behalf of any Governmental Authority or in arbitration which has been disclosed in any of the
Borrower’s public filings with the SEC prior to the Closing Date or which arises out of the same facts and circumstances, and alleges
substantially the same complaints and damages, as any action, suit or proceeding so disclosed and in which there has been no material
adverse change since the date of such disclosure.
(b)
None of the Borrower, the Subsidiaries and their respective properties or assets is in violation of (nor
will the continued operation of their material properties and assets as currently conducted violate) any law, rule or regulation (including any
zoning, building, ordinance, code or approval or any building permit, but excluding any Environmental Laws, which are the subject of
Section 3.16) or any restriction of record or agreement affecting any Mortgaged Property, or is in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
hereunder nor the use of the proceeds thereof will violate the provisions of Regulation T, Regulation U or Regulation X of the Board.
Section 3.10
Federal Reserve Regulations. Neither the making of any Loan (or the extension of any Letter of Credit)
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 3.11
Investment Company Act. None of the Borrower and the Subsidiaries is required to be registered as an
Section 3.12
Use of Proceeds. (a) The Borrower will use the proceeds of the Revolving Facility Loans, and may
request the issuance of Letters of Credit, solely for general corporate purposes (including, without limitation, for Permitted Acquisitions, New
Projects and Capital Expenditures and, in the case of Letters of Credit, for the back-up or replacement of existing letters of credit) and (b) the
Borrower will use the proceeds of the Term A Loans made on the Closing Date to finance the Transactions.
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Section 3.13
Tax Returns. Except as set forth on Schedule 3.13:
Except as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, the Borrower and each of the Subsidiaries has filed or caused to be filed all U.S. federal, state, local and non-U.S. Tax
returns required to have been filed by it (including in its capacity as withholding agent) and each such Tax return is true and correct;
(a)
(b)
Except as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, the Borrower and each of the Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due and
payable by it on the returns referred to in clause (a) and all other Taxes or assessments (or made adequate provision (in accordance with
GAAP) for the payment of all Taxes due), except Taxes or assessments that are being contested in good faith by appropriate proceedings in
accordance with Section 5.03 and for which the Borrower or any of the Subsidiaries (as the case may be) has set aside on its books adequate
reserves in accordance with GAAP; and
Other than as would not be, individually or in the aggregate, reasonably expected to have a Material
Adverse Effect, as of the Closing Date, with respect to the Borrower and each of the Subsidiaries, there are no claims being asserted in
writing with respect to any Taxes.
(c)
Section 3.14
No Material Misstatements. (a) All written factual information (other than the Projections, forward
looking information and information of a general economic nature or general industry nature) (the “Information”) concerning the Borrower,
the Subsidiaries and the Transactions and any other transactions contemplated hereby or otherwise prepared by or on behalf of the foregoing
or their representatives and made available to any Lenders or the Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby, when taken as a whole, was true and correct in all material respects, as of the date such Information was
furnished to the Lenders and as of the Closing Date and did not, taken as a whole, contain any untrue statement of a material fact as of any
such date or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially
misleading in light of the circumstances under which such statements were made (giving effect to all supplements and updates provided
thereto).
(b)
The Projections and other forward looking information and information of a general economic nature
prepared by or on behalf of the Borrower or any of its representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transactions or the other transactions contemplated hereby have been prepared in good faith
based upon assumptions believed by the Borrower to be reasonable as of the date thereof (it being understood that such Projections are as to
future events and are not to be viewed as facts, such Projections are subject to significant uncertainties and contingencies and that actual
results during the period or periods covered by any such Projections may differ significantly from the projected results, and that no
assurance can be given that the projected results will be realized), as of the date such Projections and information were furnished to the
Lenders.
Section 3.15
Employee Benefit Plans. Except as would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect: (i) no Reportable Event has occurred during the past five years as to which the Borrower, any of its
Subsidiaries or any ERISA Affiliate was required to file a report with the PBGC; (ii) no ERISA Event has occurred or is reasonably expected
to occur; and (iii) none of the Borrower, the Subsidiaries or any of their ERISA Affiliates has received any written notification that any
Multiemployer Plan has been terminated within the meaning of Title IV of ERISA.
Environmental Matters. Except as to matters that would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect: (i) no written notice, request for information, order, complaint or penalty has
been received by the Borrower or any of its
Section 3.16
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Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings pending or, to the Borrower’s knowledge,
threatened which allege a violation of or liability under any Environmental Laws, in each case relating to the Borrower or any of its
Subsidiaries, (ii) each of the Borrower and its Subsidiaries has all environmental permits, licenses and other approvals necessary for its
operations to comply with all Environmental Laws (“Environmental Permits”) and is in compliance with the terms of such Environmental
Permits and with all other Environmental Laws, (iii) no Hazardous Material is located at, on or under any property currently or, to the
Borrower’s knowledge, formerly owned, operated or leased by the Borrower or any of its Subsidiaries that would reasonably be expected to
give rise to any cost, liability or obligation of the Borrower or any of its Subsidiaries under any Environmental Laws or Environmental
Permits, and no Hazardous Material has been generated, used, treated, stored, handled, disposed of or controlled, transported or Released at
any location in a manner that would reasonably be expected to give rise to any cost, liability or obligation of the Borrower or any of its
Subsidiaries under any Environmental Laws or Environmental Permits, (iv) there are no agreements in which the Borrower or any of its
Subsidiaries has expressly assumed or undertaken responsibility for any known or reasonably likely liability or obligation of any other person
arising under or relating to Environmental Laws, which in any such case has not been made available to the Administrative Agent prior to the
Closing Date, and (v) there has been no material written environmental assessment or audit conducted (other than customary assessments not
revealing anything that would reasonably be expected to result in a Material Adverse Effect), by or on behalf of the Borrower or any of the
Subsidiaries of any property currently or, to the Borrower’s knowledge, formerly owned or leased by the Borrower or any of the Subsidiaries
that has not been made available to the Administrative Agent prior to the Closing Date.
Section 3.17
Security Documents. (a) The Collateral Agreement is effective to create in favor of the Collateral
Agent (for the benefit of the Secured Parties) a legal, valid and enforceable security interest in the Collateral described therein and proceeds
thereof. As of the Closing Date, in the case of the Pledged Collateral described in the Collateral Agreement, when certificates or promissory
notes, as applicable, representing such Pledged Collateral and required to be delivered under the applicable Security Document are delivered
to the Collateral Agent, and in the case of the other Collateral described in the Collateral Agreement (other than the Intellectual Property),
when financing statements and other filings specified in the Perfection Certificate are filed in the offices specified in the Perfection
Certificate, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and, subject to Section 9-315 of the New York Uniform Commercial Code, the
proceeds thereof, as security for the Obligations to the extent perfection can be obtained by filing Uniform Commercial Code financing
statements, in each case prior and superior in right to the Lien of any other person (except Permitted Liens).
(b)
When the Collateral Agreement or an ancillary document thereunder is properly filed and recorded in
the United States Patent and Trademark Office and the United States Copyright Office, and, with respect to Collateral in which a security
interest cannot be perfected by such filings, upon the proper filing of the financing statements referred to in clause (a) above, the Collateral
Agent (for the benefit of the Secured Parties) shall have a fully perfected (subject to exceptions arising from defects in the chain of title,
which defects in the aggregate do not constitute a Material Adverse Effect hereunder) Lien on, and security interest in, all right, title and
interest of the Loan Parties thereunder in the United States Intellectual Property Office included in the Collateral (but, in the case of the
United States registered copyrights included in the Collateral, only to the extent such United States registered copyrights are listed in such
ancillary document filed with the United States Copyright Office) listed in such ancillary document, in each case prior and superior in right
to the Lien of any other person, except for Permitted Liens (it being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks and patents,
trademark and patent applications and registered copyrights acquired by the Loan Parties after the Closing Date).
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(c)
The Mortgages executed and delivered after the Closing Date pursuant to the Collateral and Guarantee
Requirement and Section 5.10 shall be effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) legal, valid
and enforceable Liens on all of the Loan Parties’ rights, titles and interests in and to the Mortgaged Property thereunder and the proceeds
thereof, and when such Mortgages are filed or recorded in the proper real estate filing or recording offices, and all relevant mortgage taxes
and recording charges are duly paid, the Collateral Agent (for the benefit of the Secured Parties) shall have valid Liens with record notice to
third parties on, and security interests in, all rights, titles and interests of the Loan Parties in such Mortgaged Property and, to the extent
applicable, subject to Section 9-315 of the Uniform Commercial Code, the proceeds thereof, in each case prior and superior in right to the
Lien of any other person, except for Permitted Liens; provided, that the representations contained in this Section 3.17(c) shall not apply
with respect to the perfection of Mortgaged Property which does not constitute real property.
(d)
Notwithstanding anything herein (including this Section 3.17) or in any other Loan Document to the
contrary, no Borrower or any other Loan Party makes any representation or warranty as to the effects of perfection or non-perfection, the
priority or the enforceability of any pledge of or security interest in any Equity Interests of any Foreign Subsidiary, or as to the rights and
remedies of the Agents or any Lender with respect thereto, under foreign law.
Section 3.18
Location of Real Property. The Perfection Certificate lists correctly, in all material respects, as of the
Closing Date all Material Real Property owned by the Borrower and the Subsidiary Loan Parties and the addresses thereof. As of the Closing
Date, the Borrower and the Subsidiary Loan Parties own in fee all the Material Real Property set forth as being owned by them in the
Perfection Certificate except to the extent set forth therein.
Section 3.19
Solvency. (a) The fair value of the assets of the Borrower and its subsidiaries on a consolidated basis,
at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower and its subsidiaries on a
consolidated basis; (ii) the present fair saleable value of the property of the Borrower and its subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of the Borrower and its subsidiaries on a consolidated basis on their
debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii)
the Borrower and its subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (iv) the Borrower and its subsidiaries on a consolidated basis will
not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted
and are proposed to be conducted following the Closing Date.
(b)
The Borrower does not intend to, and the Borrower does not believe that it or any of its subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it
or any such subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such
subsidiary.
Section 3.20
Labor Matters. Except as, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect: (a) there are no strikes or other labor disputes pending or threatened against the Borrower or any of the
Subsidiaries; (b) the hours worked and payments made to employees of the Borrower and the Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable law dealing with such matters; and (c) all payments due from the Borrower or any of the
Subsidiaries or for which any claim may be made against the Borrower or any of the Subsidiaries, on account of wages and employee health
and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Borrower or such Subsidiary to the
extent required
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by GAAP. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, the
consummation of the Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any
material collective bargaining agreement to which the Borrower or any of the Subsidiaries (or any predecessor) is a party or by which the
Borrower or any of the Subsidiaries (or any predecessor) is bound.
Insurance. Schedule 3.21 sets forth a true, complete and correct description, in all material respects, of
all material insurance (excluding any title insurance) maintained by or on behalf of the Borrower or the Subsidiaries as of the Closing Date.
As of such date, such insurance is in full force and effect.
Section 3.21
consummation of the transactions contemplated by this Agreement or any other Loan Document.
Section 3.22
No Default. No Default or Event of Default has occurred and is continuing or would result from the
Section 3.23
Intellectual Property; Licenses, Etc. Except as would not reasonably be expected to have a Material
Adverse Effect or as set forth in Schedule 3.23, (a) the Borrower and each of its Subsidiaries owns, or possesses the right to use, all
Intellectual Property used or held for use in or otherwise reasonably necessary for the present conduct of their respective businesses, (b) to
the knowledge of the Borrower, the Borrower and its Subsidiaries are not materially interfering with, infringing upon, misappropriating or
otherwise violating Intellectual Property of any person, and (c) (i) to the knowledge of the Borrower, no material claim or litigation regarding
any of the Intellectual Property owned by the Borrower and its Subsidiaries is pending or threatened in writing and (ii) to the knowledge of
the Borrower, no material claim or litigation regarding any other Intellectual Property described in the foregoing clauses (a) and (b) is
pending or threatened.
Senior Debt. The Loan Obligations constitute “Senior Debt” (or the equivalent thereof) under the
documentation governing any Material Indebtedness of any Loan Party permitted to be incurred hereunder constituting Indebtedness that is
subordinated in right of payment to the Loan Obligations.
Section 3.24
Section 3.25
USA PATRIOT Act; OFAC.
(a)
The Borrower and each Subsidiary Loan Party is in compliance in all material respects with the
material provisions of the USA PATRIOT Act, and, (i) at least three Business Days prior to the Closing Date, the Borrower has provided to
the Administrative Agent all information related to the Loan Parties (including names, addresses and tax identification numbers (if
applicable)) reasonably requested in writing by the Administrative Agent not less than ten (10) Business Days prior to the Closing Date and
mutually agreed to be required under “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT
Act, to be obtained by the Administrative Agent or any Lender and (ii) at least three Business Days prior to the Closing Date, the Borrower,
to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, has provided to each Lender
that has requested, in a written notice to the Borrower not less than ten Business Days prior to the Closing Date, a Beneficial Ownership
Certification in relation to the Borrower.
(b)
None of the Borrower or any of its Subsidiaries nor, to the knowledge of the Borrower, any director,
officer, agent, employee or Affiliate of the Borrower or any of the Subsidiaries is currently (i) the target of any sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. State Department, the European Union or
relevant member states of the European Union, the United Nations Security Council, Her Majesty’s Treasury or Canada (“Sanctions”), (ii)
organized or resident in a country, region or territory which is the target of
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comprehensive Sanctions (including, without limitation, the so-called Donetsk People's Republic and the so-called Luhansk People's
Republic regions of Ukraine, Iran, Syria, Cuba, North Korea and Crimea), or (iii) owned or controlled by any such person described in the
foregoing clauses (i) and (ii). The Borrower and its Subsidiaries have conducted their business in compliance in all material respects with all
applicable Sanctions and have instituted and maintained policies and procedures reasonably designed to promote and achieve compliance
with such Sanctions.
(c)
The Borrower will not directly or indirectly use the proceeds of the Loans or the Letters of Credit or
otherwise make available such proceeds to any person, for the purpose of financing the activities of any person that is currently the target of
any Sanctions or for the purpose of funding, financing or facilitating any activities, business or transaction with or in any country that is the
target of Sanctions, to the extent such activities, businesses or transaction would be prohibited by sanctions laws and regulations
administered by the United States, including OFAC and the U.S. State Department, the United Nations Security Council, Her Majesty’s
Treasury, the European Union or relevant member states of the European Union, or Canada (collectively, the “Sanctions Laws”), or in any
manner that would result in the violation of any Sanctions Laws applicable to any party hereto.
(d)
As of the Closing Date, the information included in the Beneficial Ownership Certification, if
applicable, is true and correct in all respects.
Section 3.26
Foreign Corrupt Practices Act.
(a)
The Borrower and its Subsidiaries, and, to the knowledge of the Borrower or any of its Subsidiaries,
their directors, officers, agents or employees, are in compliance with the U.S. Foreign Corrupt Practices Act of 1977 or similar anti-
corruption law of a jurisdiction in which the Borrower or any of its Subsidiaries conduct their business or to which they are lawfully subject
(“Anti-Corruption Laws”), in each case, in all material respects. The Borrower and its Subsidiaries have instituted and maintained policies
and procedures reasonably designed to promote and achieve compliance with such Anti-Corruption Laws.
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment or will violate any Anti-Corruption Laws.
(b)
No part of the proceeds of the Loans or Letters of Credit made hereunder will be used to make any
Section 3.27
Affected Financial Institution. No Loan Party is an Affected Financial Institution.
ARTICLE IV
Conditions of Lending
The obligations of (a) the Lenders to make Loans and (b) any Issuing Bank to issue, amend, extend or renew Letters of
Credit or increase the stated amounts of Letters of Credit hereunder (each, a “Credit Event”) are subject to the satisfaction (or waiver in
accordance with Section 9.08) of the following conditions:
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extension or renewal of a Letter of Credit (in each case, other than pursuant to an Incremental Assumption Agreement):
Section 4.01
All Credit Events. On the date of each Borrowing and on the date of each issuance, amendment,
(a)
The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as
required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03) or,
in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance of such Letter of Credit as required by Section 2.05(b).
(b)
The representations and warranties set forth in the Loan Documents shall be true and correct in all
material respects as of such date, in each case, with the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct
in all material respects as of such earlier date).
At the time of and immediately after each Borrowing or issuance, amendment, extension or renewal
of a Letter of Credit (other than an amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such
Letter of Credit), as applicable, no Event of Default or Default shall have occurred and be continuing.
(c)
Each Borrowing and other Credit Event that occurs after the Closing Date shall be deemed to
constitute a representation and warranty by the Borrower on the date of such Borrowing, issuance, amendment, extension or renewal as
applicable, as to the matters specified in paragraphs (b) and (c) of this Section 4.01.
(d)
Section 4.02
First Credit Event. On or prior to the Closing Date:
(a)
The Administrative Agent (or its counsel) shall have received from each of the Borrower, the Issuing
Banks and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to
the Administrative Agent (which may include delivery of a signed signature page of this Agreement by electronic transmission (e.g., “pdf”))
that such party has signed a counterpart of this Agreement.
(b)
The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank,
a written opinion of Goodwin Procter LLP, as special counsel for the Loan Parties (A) dated the Closing Date, (B) addressed to each Issuing
Bank, the Administrative Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the
Administrative Agent covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
similar officer of each Loan Party dated the Closing Date and certifying:
(c)
The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or
(i)
a copy of the certificate or articles of incorporation, certificate of limited partnership,
certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan
Party, (1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the
jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person
duly authorized by the constituent documents of such Loan Party,
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under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(ii)
a certificate as to the good standing (to the extent such concept or a similar concept exists
that attached thereto is a true and complete copy of the by-laws (or partnership agreement,
limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on
the Closing Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iii)
(iv)
that attached thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the
execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in
full force and effect on the Closing Date,
any other document delivered in connection herewith on behalf of such Loan Party, and
(v)
as to the incumbency and specimen signature of each officer executing any Loan Document or
Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(vi)
as to the absence of any pending proceeding for the dissolution or liquidation of such Loan
(d)
The Administrative Agent shall have received a completed Perfection Certificate, dated the Closing
Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of
the Uniform Commercial Code (or equivalent), tax and judgment filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents)
are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released
(or arrangements reasonably satisfactory to the Administrative Agent for such release shall have been made).
(e)
The Administrative Agent shall have received the financial statements referred to in Section 3.05.
The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and
signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after
giving effect to the Transactions on the Closing Date.
(f)
(g)
The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing
Date and, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and
documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP) required to be
reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Closing Date (which amounts may be
offset against the proceeds of the Loans).
Except as set forth in Schedule 5.12 (which, for the avoidance of doubt, shall override the applicable
clauses of the definition of “Collateral and Guarantee Requirement”) and subject to the grace periods and post-closing periods set forth in
such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date.
(h)
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(i)
The Administrative Agent shall have received all documentation and other information required by
Section 3.25(a), to the extent such information has been requested not less than three (3) Business Days prior to the Closing Date. On or
prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have
delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
Date, to the effect set forth in Sections 4.01(b) and (c) hereof.
(j)
The Borrower shall have delivered to the Administrative Agent a certificate dated as of the Closing
(k)
On the Closing Date, after giving effect to the Transactions and the other transactions contemplated
hereby, none of the Borrower or any of the Subsidiaries shall have any third party Indebtedness of the type described in clause (a) of the
definition thereof other than (i) the Loans and other extensions of credit under this Agreement (including the Existing Roll-Over Letters of
Credit, which shall be deemed to be Letters of Credit issued under and subject to this Agreement), other Indebtedness permitted to be
incurred or outstanding on or prior to the Closing Date, (ii) other Indebtedness incurred for capital expenditures or working capital purposes
and (iii) other Indebtedness permitted under Section 6.01 or approved by the Arrangers in their reasonable discretion.
For purposes of determining compliance with the conditions specified in Section 4.01 and this Section 4.02, each Lender
shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its
objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s
ratable portion of the initial Borrowing.
ARTICLE V
Affirmative Covenants
otherwise consent in writing, the Borrower will, and will cause each of the Subsidiaries to:
The Borrower covenants and agrees with each Lender that, until the Termination Date, unless the Required Lenders shall
Section 5.01
Existence; Business and Properties. (a) Do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence, except, in the case of a Subsidiary of the Borrower, where the failure to do so would not
reasonably be expected to have a Material Adverse Effect, and except as otherwise permitted under Section 6.05, and except for the
liquidation or dissolution of Subsidiaries if the assets of such Subsidiaries to the extent they exceed estimated liabilities are acquired by the
Borrower or a Wholly Owned Subsidiary of the Borrower in such liquidation or dissolution; provided, that Subsidiary Loan Parties may not
be liquidated into Subsidiaries that are not Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign Subsidiaries (except in
each case as permitted under Section 6.05).
(b)
Except where the failure to do so would not reasonably be expected to have a Material Adverse
Effect, do or cause to be done all things necessary to (i) lawfully obtain, preserve, renew, extend and keep in full force and effect the
permits, franchises, authorizations, Intellectual Property, licenses and rights with respect thereto necessary to the normal conduct of its
business, and (ii) at all times maintain, protect and preserve all property necessary to the normal conduct of its business and keep such
property in good repair, working order and condition (ordinary wear and tear excepted), from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
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thereto necessary in order that the business carried on in connection therewith, if any, may be properly conducted at all times (in each case
except as permitted by this Agreement).
Section 5.02
Insurance. (a) Maintain, with financially sound and reputable insurance companies, insurance (subject
to customary deductibles and retentions) in such amounts and against such risks as are customarily maintained by similarly situated
companies engaged in the same or similar businesses operating in the same or similar locations, cause the Collateral Agent to be listed as a
co-loss payee on property and casualty policies and as an additional insured on liability policies. Notwithstanding the foregoing, the
Borrower and the Subsidiaries may self-insure with respect to such risks with respect to which companies of established reputation engaged
in the same general line of business in the same general area usually self-insure.
(b)
Except as the Administrative Agent may agree in its reasonable discretion, cause all such property and
casualty insurance policies to be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable endorsement,
in form and substance reasonably satisfactory to the Administrative Agent; cause each such policy covered by this clause (b) to provide that
it shall not be cancelled or not renewed upon less than 30 days’ prior written notice thereof by the insurer to the Collateral Agent; deliver to
the Collateral Agent, prior to or concurrently with the cancellation or nonrenewal of any such policy of insurance covered by this clause (b),
a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Collateral Agent), or
insurance certificate with respect thereto, together with evidence satisfactory to the Administrative Agent of payment of the premium
therefor, in each case of the foregoing, to the extent customarily maintained, purchased or provided to, or at the request of, lenders by
similarly situated companies in connection with credit facilities of this nature.
(c)
If any portion of any Mortgaged Property is at any time located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a special flood hazard area (each a “Special Flood Hazard Area”) with
respect to which flood insurance has been made available under the Flood Insurance Laws, (i) maintain, or cause to be maintained, with a
financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and
regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral Agent evidence of such compliance in form
and substance reasonably acceptable to the Administrative Agent, including a copy of the flood insurance policy and declaration page
relating thereto.
(d)
In connection with the covenants set forth in this Section 5.02, it is understood and agreed that:
(i)
the Administrative Agent, the Collateral Agent, the Lenders, the Issuing Banks and their
respective agents or employees shall not be liable for any loss or damage insured by the insurance policies required to be maintained
under this Section 5.02, it being understood that (A) the Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no
rights of subrogation against the Administrative Agent, the Collateral Agent, the Lenders, any Issuing Bank or their agents or
employees. If, however, the insurance policies, as a matter of the internal policy of such insurer, do not provide waiver of
subrogation rights against such parties, as required above, then the Borrower, on behalf of itself and behalf of each of its
Subsidiaries, hereby agrees, to the extent permitted by law, to waive, and further agrees to cause each of their Subsidiaries to waive,
its right of recovery, if any, against the Administrative Agent, the Collateral Agent, the Lenders, any Issuing Bank and their agents
and employees;
(including acting in the capacity as the Collateral Agent) under this Section 5.02
(ii)
the designation of any form, type or amount of insurance coverage by the Collateral Agent
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shall in no event be deemed a representation, warranty or advice by the Collateral Agent or the Lenders that such insurance is
adequate for the purposes of the business of the Borrower and the Subsidiaries or the protection of their properties; and
Borrower and its Subsidiaries has in effect as of the Closing Date satisfies for all purposes the requirements of this Section 5.02.
(iii)
except with respect to subsection (c) above, the amount and type of insurance that the
Section 5.03
Taxes. Pay its obligations in respect of all Tax liabilities, assessments and governmental charges,
before the same shall become delinquent or in default, except where (i) the amount or validity thereof is being contested in good faith by
appropriate proceedings and the Borrower or a Subsidiary thereof has set aside on its books adequate reserves therefor in accordance with
GAAP or (ii) the failure to make payment could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse
Effect.
such information to the Lenders):
Section 5.04
Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish
(a)
within 90 days (or such earlier date on which the Borrower is required to file a Form 10-K under the
Exchange Act) after the end of each fiscal year, commencing with the fiscal year ending on September 30, 2020, a consolidated balance
sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its
Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in
comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations,
cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent
public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be
qualified as to scope of audit (other than an emphasis matter paragraph) or as to the status of the Borrower or any Material Subsidiary as a
going concern, other than solely with respect to, or resulting solely from, (x) an upcoming maturity date under any series of Indebtedness
for borrowed money, (y) any potential or actual breach of any Financial Covenant or (z) any prospective breach of any financial covenant
under any other Indebtedness for borrowed money) to the effect that such consolidated financial statements fairly present, in all material
respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K (or any successor or comparable form) of the
Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the
information specified herein);
(b)
within 45 days (or such earlier date on which the Borrower is required to file a Form 10-Q under the
Exchange Act) after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ended on June
30, 2020), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower
and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the
then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the
prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash
flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related
statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly
presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it
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being understood that the delivery by the Borrower of quarterly reports on Form 10-Q (or any successor or comparable form) of the
Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include
the information specified herein);
(c)
(x) concurrently with any delivery of financial statements under clause (a) or (b) above (commencing
with the delivery of financial statements under clause (a) above for the year ended September 30, 2020), a certificate of a Financial Officer
of the Borrower, substantially in the form of Exhibit M or another form approved by the Administrative Agent, (i) certifying that no Event
of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of
Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (ii) commencing with the end of the first full fiscal quarter ending after the Closing Date, setting forth computations in
reasonable detail demonstrating compliance with the Financial Covenants and (y) concurrently with any delivery of financial statements
under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the
accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of
such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for
legal interpretations);
(d)
promptly after the same become publicly available, copies of all periodic and other publicly available
reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of the
Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that
such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for
purposes of this Agreement when posted to the website of the Borrower or the website of the SEC and written notice of such posting has
been delivered to the Administrative Agent;
(e)
within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion)
after the beginning of each fiscal year (commencing with the fiscal year ending on September 30, 2020), a consolidated annual budget for
such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following
fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget
shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on
assumptions believed by the Borrower to be reasonable as of the date of delivery thereof;
upon the reasonable request of the Administrative Agent not more frequently than once a year, an
updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such
information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f);
(f)
promptly following any request therefor, information and documentation reasonably requested by the
Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules
and regulations, including, without limitation, the USA PATRIOT Act and the Beneficial Ownership Regulation; and
(g)
promptly, from time to time, such other customary information regarding the operations, business
affairs and financial condition of the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each
case the Administrative Agent may reasonably request (for itself or on behalf of any Lender).
(h)
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The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d)
above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by
Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with
such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).
Litigation and Other Notices. Furnish to the Administrative Agent (which will promptly thereafter
furnish to the Lenders) written notice of the following promptly after any Responsible Officer of the Borrower obtains actual knowledge
thereof:
Section 5.05
any) proposed to be taken with respect thereto;
(a)
any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if
(b)
the filing or commencement of, or any written threat or notice of intention of any person to file or
commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against
the Borrower or any of the Subsidiaries as to which an adverse determination is reasonably probable and which, if adversely determined,
would reasonably be expected to have a Material Adverse Effect;
general public knowledge and that has had, or would reasonably be expected to have, a Material Adverse Effect; and
(c)
any other development specific to the Borrower or any of the Subsidiaries that is not a matter of
would reasonably be expected to have a Material Adverse Effect.
(d)
the occurrence of any ERISA Event that, together with all other ERISA Events that have occurred,
Section 5.06
Compliance with Laws. Comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect; provided, that this Section 5.06 shall not apply to Environmental Laws, which are the subject of
Section 5.09, or to laws related to Taxes, which are the subject of Section 5.03. The Borrower will maintain in effect and enforce policies and
procedures reasonably designed to ensure compliance in all material respects by the Borrower, its Subsidiaries and their respective directors,
officers, employees and agents with Anti-Corruption Laws and applicable Sanctions Laws in connection with the Borrower’s or its
Subsidiaries’ business operations.
Section 5.07
Maintaining Records; Access to Properties and Inspections. Maintain all financial records in
accordance with GAAP and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance
of an Event of Default, any Lender to visit and inspect the financial records and the properties of the Borrower or any of the Subsidiaries at
reasonable times, upon reasonable prior notice to the Borrower, and as often as reasonably requested and to make extracts from and copies of
such financial records, and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance of
an Event of Default, any Lender upon reasonable prior notice to the Borrower to discuss the affairs, finances and condition of the Borrower or
any of the Subsidiaries with the officers thereof and independent accountants therefor (so long as the Borrower has the opportunity to
participate in any such discussions with such accountants), in each case, subject to reasonable requirements of confidentiality, including
requirements imposed by law or by contract.
Section 5.08
contemplated by Section 3.12 and Section 3.25(c).
Use of Proceeds. Use the proceeds of the Loans made and Letters of Credit issued in the manner
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Section 5.09
Compliance with Environmental Laws. Comply, and make reasonable efforts to cause all lessees and
other persons occupying its properties to comply, with all Environmental Laws applicable to its operations and properties; and obtain and
renew all material authorizations and permits required pursuant to Environmental Law for its operations and properties, in each case in
accordance with Environmental Laws, except, in each case with respect to this Section 5.09, to the extent the failure to do so would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.10
Further Assurances; Additional Security.
(a)
Execute any and all further documents, financing statements, agreements and instruments, and take all
such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents), that the
Administrative Agent may reasonably request (including, without limitation, those required by applicable law), to satisfy the Collateral and
Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan
Parties and provide to the Collateral Agent, from time to time upon reasonable request by the Administrative Agent, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security
Documents.
(b)
If any asset (other than Real Property) that has an individual fair market value (as determined in good
faith by the Borrower) in an amount greater than $5,000,000 is acquired by the Borrower or any Subsidiary Loan Party after the Closing
Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a
Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets constituting
Excluded Property), the Borrower or such Subsidiary Loan Party, as applicable, will (i) notify the Collateral Agent of such acquisition or
ownership and (ii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and
cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Administrative Agent to grant and perfect
such Liens, including actions described in clause (a) of this Section 5.10, all at the expense of the Loan Parties, subject to clause (g) below.
(c)
Within 90 days after the acquisition of any Material Real Property after the Closing Date (or such later
date as the Administrative Agent may agree in its reasonable discretion), (i) grant and cause each of the Subsidiary Loan Parties to grant to
the Collateral Agent security interests in, and Mortgages on, such Material Real Property pursuant to documentation substantially in the
form of Exhibit K (with such changes to account for local law matters) or otherwise in a form reasonably acceptable to the Borrower and
the Administrative Agent, which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except
Permitted Liens, (ii) record or file, and cause each such Subsidiary Loan Party to record or file, the Mortgage or instruments related thereto
in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent
(for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party
to pay, in full, all Taxes, fees and other charges required to be paid in connection with such recording or filing, in each case subject to clause
(g) below, (iii) deliver to the Collateral Agent an updated Schedule 1.01(E) reflecting such Mortgaged Properties and (iv) unless otherwise
waived by the Administrative Agent, with respect to each such Mortgage, cause the requirements set forth in clauses (f) and (g) of the
definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
If any additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Closing
Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing
to be an Excluded Subsidiary being deemed
(d)
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to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within 15 Business Days after the date such
Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the
Collateral Agent thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such longer period as the
Administrative Agent may agree in its reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and
Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the
Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied
with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any
Loan Party, subject to clause (g) below.
(e)
If any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date
(with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the
acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the
date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable
discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or
such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to
be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g)
below.
(f)
Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s corporate
or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s jurisdiction of organization or (D)
in the location of the chief executive office of any Loan Party that is not a registered organization; provided, that the Borrower shall not
effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such
longer period as the Administrative Agent may agree in its reasonable discretion), under the Uniform Commercial Code that are required in
order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the
Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g)
The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other
Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded
Property”): (i) any Real Property other than Material Real Property, (ii) (x) motor vehicles, railcars, trailers, aircraft, aircraft engines,
construction and earth moving equipment and other assets subject to certificates of title other than to the extent a Lien on such assets can be
perfected by filing a UCC-1, (y) letter of credit rights (in each case, other than to the extent a Lien on such assets or such rights can be
perfected by filing a UCC-1) and (z) commercial tort claims with a value of less than $5,000,000, (iii) pledges and security interests
prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent
such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of
the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the
type contemplated by Section 6.01(i))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the
applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law) or which could require
governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or
authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material
adverse tax consequences as determined in good faith by the Borrower in consultation with the Administrative Agent, (v) any lease, license
or other agreement to the extent that a grant of a security interest therein would
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violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the
Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code
and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the
Uniform Commercial Code notwithstanding such prohibition, (vi) those assets as to which the Administrative Agent and the Borrower
reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the
value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent
security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the
applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, (viii) any “intent-to-use”
applications for trademark or service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. §1051, unless and until
an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the Lanham Act has been filed, (ix) other customary
exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise
separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose
Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, (xi)
any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses
(c), (i), (j), (aa) or (mm) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as
permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires
the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such
equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-
assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), in each case, other than proceeds and
receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such
prohibition and (xiv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the
Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything
herein to the contrary, (A) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection
of security interests or other Liens in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets
(including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it
reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue
effort or expense or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (B) no
control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or
commodities accounts, (C) no landlord, mortgagee or bailee waivers or collateral access agreements shall be required, (D) no foreign-law
governed security documents or perfection under foreign law shall be required, nor shall the Administrative Agent be authorized to take any
action outside the United States to create any security interest in assets located or titled outside of the United States or to perfect or make
enforceable any security interests in any such assets, (E) share certificates of any person that is not a Subsidiary or of any Foreign
Subsidiary shall not be required to be delivered, (F) no notice shall be required to be sent to account debtors or other contractual third
parties prior to an Event of Default, (G) Liens required to be granted from time to time pursuant to, or any other requirements of, the
Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security
Documents and (H) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount
secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged
Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount
agreed to by the Administrative Agent).
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Section 5.11
[Reserved].
Post-Closing. Take all necessary actions to satisfy the items described on Schedule 5.12 within the
applicable period of time specified in such Schedule (or such longer period as the Administrative Agent may agree in its reasonable
discretion).
Section 5.12
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, until the Termination Date, unless the Required Lenders (or, in
the case of Section 6.11, the Required Revolving Facility Lenders voting as a single Class) shall otherwise consent in writing, the Borrower
will not, and will not permit any of the Subsidiaries to:
Section 6.01
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a)
(i) Indebtedness existing or committed on the Closing Date (provided, that any such Indebtedness that
is (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness (other than (x) intercompany Indebtedness Refinanced with Indebtedness owed to a
person not affiliated with the Borrower or any Subsidiary and (y) to the extent set forth on Schedule 6.01);
Documents and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(b)
(i) Indebtedness created hereunder (including pursuant to Section 2.21) and under the other Loan
non-speculative purposes;
(c)
Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for
(d)
Indebtedness in respect of self-insurance and Indebtedness and other obligations owed to (including
obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’
compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary,
pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with
past practice;
(e)
Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other
Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred
pursuant to this Section 6.01(e) shall be subject to Section 6.04 (provided, for the avoidance of doubt, that, during the period commencing
on the Amendment No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period, no new Indebtedness of any
Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be Incurred, created, assumed or permitted to exist pursuant
to this Section 6.01(e)) and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Loan Party incurred pursuant to this
Section 6.01(e) shall be subordinated to the Loan Obligations under this Agreement on subordination terms described in the intercompany
note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably
satisfactory to the Administrative Agent and the Borrower;
and completion guarantees and similar obligations, in each case provided in the
(f)
Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance
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ordinary course of business or consistent with past practice, including those incurred to secure health, safety and environmental obligations
in the ordinary course of business or consistent with past practice;
Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in each case incurred in the ordinary course of business or other cash management
services incurred in the ordinary course of business or consistent with past practice;
(g)
(h)
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated
with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any
Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Acquisition) or any Investment or New
Project permitted hereunder, where such acquisition, merger or consolidation, Investment or New Project is not prohibited by this
Agreement; provided, that (x) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition,
merger, consolidation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and
any related transactions is not greater than 4.00 to 1.00 and (y) in the case of any such Indebtedness incurred under this clause (h)(i) by a
Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, Investment or
New Project, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger
or consolidation, Investment or New Project, the incurrence of such Indebtedness and the use of proceeds thereof and any related
transactions, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section
6.01(h)(i)(y) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, shall not exceed the greater of
$15,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any
Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i)
(i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the
Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, installation, repair, replacement or
improvement of the respective property (real or personal), equipment or other asset (whether through the direct purchase of property or the
Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease,
construction, installation, repair, replacement or improvement, in an aggregate principal amount outstanding that immediately after giving
effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other
Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $35,000,000 and 0.35 times the EBITDA
calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) any Permitted Refinancing Indebtedness in respect of
the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any
Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and (ii) any Permitted Refinancing
Indebtedness in respect of the foregoing;
(j)
(k)
(i) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding
that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate
principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $20,000,000 and
0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing
Indebtedness in respect thereof;
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(l)
Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not
greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity
Interests or (y) a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or
contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m)
Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or
any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of
Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are
permitted by Section 6.04 (other than Section 6.04(l) or 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness
of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary
Loan Parties incurred for working capital purposes in the ordinary course of business or consistent with past practice on ordinary business
terms so long as such Indebtedness is permitted to be incurred under Section 6.01 to the extent such Guarantees are permitted by Section
6.04 (other than Section 6.04(l) or Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this
Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly
subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n)
the Borrower or any Subsidiary providing for
indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed
in connection with the Transactions, any Permitted Acquisition, other Investments or the disposition of any business, assets or a Subsidiary
not prohibited by this Agreement;
Indebtedness arising from agreements of
Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments
issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary
course of business or consistent with past practice;
(o)
credit entered into in the ordinary course of business or consistent with past practice;
(p)
Guarantees by the Borrower or any Subsidiary of Indebtedness under customer financing lines of
(q)
(r)
[reserved];
[reserved];
(s)
(i) unsecured Indebtedness so long as immediately after giving effect to the incurrence of such
Indebtedness and the use of proceeds thereof, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 4.00 to 1.00; provided,
that the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other
than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness
outstanding pursuant to Section 6.01(h)(i)(y) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan
Parties, the greater of $15,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test
Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t)
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount
outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the
aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of
$15,000,000 and 0.15 times
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the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness
in respect thereof;
(u)
Indebtedness incurred in the ordinary course of business or consistent with past practice in respect of
obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection
with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on
customary trade terms in the ordinary course of business or consistent with past practice and not in connection with the borrowing of money
or any Hedging Agreements;
Indebtedness representing deferred compensation to employees, consultants or independent
contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or
any Subsidiary incurred in the ordinary course of business or consistent with past practice;
(v)
(w)
(x)
(y)
(z)
(aa)
Indebtedness in connection with Permitted Securitization Financings;
obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
[reserved];
[reserved];
(bb)
(i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint
ventures in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the
use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section
6.01(bb), would not exceed the greater of $75,000,000 and 0.75 times the EBITDA calculated on a Pro Forma Basis for the then most
recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and
employees thereof, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the
Borrower permitted by Section 6.06;
(cc)
Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred
compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Acquisitions or any
other Investment permitted hereunder;
(dd)
Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the
form of legal entity) that is not a Subsidiary arising in the ordinary course of business or consistent with past practice in connection with the
cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;
(ee)
contained in supply arrangements, in each case, in the ordinary course of business or consistent with past practice;
(ff)
Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations
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of such Letter of Credit (or a letter of credit issued under any other revolving credit or letter of credit facility permitted by Section 6.01);
(gg)
Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount
(hh)
(i) Indebtedness under bilateral, working capital or local facilities in an aggregate principal amount
outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the
aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(hh)(i), would not exceed the greater of
$50,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any
Permitted Refinancing Indebtedness in respect thereof;
all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-
petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (hh) above or
refinancings thereof.;
(ii)
provided that, during the period commencing on the Amendment No. 2 Effective Date and ending on the last day of the
Covenant Adjustment Period, no new Indebtedness shall be Incurred, created, assumed or permitted to exist pursuant to Section 6.01(l), (t),
(w), (bb) or (hh) above.
For purposes of determining compliance with this Section 6.01 or Section 6.02, the amount of any Indebtedness
denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such
Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date,
on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving
Indebtedness) after the Closing Date, on the date on which such Indebtedness was incurred (in respect of term Indebtedness) or committed (in
respect of revolving Indebtedness); provided, that, if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency
other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable
Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing,
such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus
(ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), accrued interest, defeasance costs and
other costs and expenses incurred in connection with such refinancing.
Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by
reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (ii) but may be permitted
in part under any combination thereof, (B) [reserved], (C) in connection with (1) the incurrence of revolving loan Indebtedness under this
Section 6.01 or (2) any commitment relating to the incurrence of Indebtedness under this Section 6.01 and the granting of any Lien to secure
such Indebtedness, the Borrower or applicable Subsidiary may designate the incurrence of such Indebtedness and the granting of such Lien
therefor as having occurred on the date of first incurrence of such revolving loan Indebtedness or commitment (such date, the “Deemed
Date”), and any related subsequent actual incurrence and the granting of such Lien therefor will be deemed for purposes of this Section 6.01
and Section 6.02 of this Agreement to have been incurred or granted on such Deemed Date, including, without limitation, for purposes of
calculating usage of any baskets hereunder (if applicable), the Net Total Leverage Ratio, the Net Secured Leverage Ratio and EBITDA (and
all such calculations, without duplication, on the Deemed Date and on any subsequent date until such commitment is funded or terminated or
such election is rescinded without the incurrence thereby shall be made on a Pro Forma Basis after giving effect to the deemed incurrence, the
granting of any Lien therefor and related
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transactions in connection therewith) and (D) for purposes of calculating the Net Total Leverage Ratio under Section 6.01(h) or (s) on any
date of incurrence of Indebtedness pursuant to such Section 6.01(h) and/or (s), the net cash proceeds funded by financing sources upon the
incurrence of such Indebtedness incurred at such time of calculation shall not be netted against the applicable amount of Consolidated Debt
for purposes of such calculation of the Net Total Leverage Ratio at such time. In addition, with respect to any Indebtedness that was
permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted
hereunder after the date of such incurrence.
This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior to secured Indebtedness merely
because it is unsecured or (2) senior Indebtedness as subordinated or junior to any other senior Indebtedness merely because it has a junior
priority with respect to the same collateral.
With respect to the incurrence of any Indebtedness for borrowed money pursuant to Section 6.01(h)(i) and Section 6.01(s)
(i), (1) the stated maturity date of any such Indebtedness shall be no earlier than the Term A Facility Maturity Date as in effect at the time
such Indebtedness is incurred and (2) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining
Weighted Average Life to Maturity of the Term A Loans in effect at the time such Indebtedness is incurred.
Liens. Create, incur, assume or permit to exist any Lien on any property or assets (including stock or
other securities of any person) of the Borrower or any Subsidiary at the time owned by it or on any income or revenues or rights in respect of
any thereof, except the following (collectively, “Permitted Liens”):
Section 6.02
(a)
Liens on property or assets of the Borrower and the Subsidiaries existing on the Closing Date (or
created following the Closing Date pursuant to agreements in existence on the Closing Date (or refinancings thereof) requiring the creation
of such Liens) and, to the extent securing Indebtedness in an aggregate principal amount in excess of $5,000,000, set forth on Schedule
6.02(a) and any modifications, replacements, renewals or extensions thereof; provided, that such Liens shall secure only those obligations
that they secure on the Closing Date (and any Permitted Refinancing Indebtedness in respect of such obligations permitted by Section 6.01
except to the extent set forth on Schedule 6.02(a)) and shall not subsequently apply to any other property or assets of the Borrower or any
Subsidiary other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, and (B) proceeds
and products thereof;
any Lien created under the Loan Documents (including Liens created under the Security Documents
securing obligations in respect of Secured Hedge Agreements and Secured Cash Management Agreements) or permitted in respect of any
Mortgaged Property by the terms of the applicable Mortgage;
(b)
(c)
any Lien on any property or asset of the Borrower or any Subsidiary securing (x) Indebtedness
assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted
Acquisition), which Indebtedness is permitted by Section 6.01(h), or (y) any Permitted Refinancing Indebtedness in respect thereof
permitted by Section 6.01(h); provided that (i) such Liens do not apply to any property or assets of the Borrower or any Subsidiary other
than the property or assets acquired in the applicable acquisition, (ii) in the case of Liens on the Collateral that are (or are intended to be)
junior in priority to the Liens on the Collateral securing the Term A Loans, such Liens shall be subject to a Permitted Junior Intercreditor
Agreement and (iii) in the case of Liens on the Collateral that are (or are intended to be) pari passu with the Liens on the Collateral securing
the Term A Loans, (x) such Liens shall be subject to a Permitted Pari Passu Intercreditor Agreement and (y) any Indebtedness for borrowed
money incurred in the form of term loans that are incurred in contemplation of
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an acquisition, merger or consolidation and that are secured by such Liens shall be subject to the last paragraph of Section 6.02;
30 days or that are being contested in compliance with Section 5.03;
(d)
Liens for Taxes, assessments or other governmental charges or levies not yet delinquent by more than
(e)
Liens imposed by law, such as landlord’s (including for this purpose landlord’s Liens created pursuant
to the applicable lease), carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, supplier’s, construction or other like Liens,
securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in
respect of which, if applicable, the Borrower or any Subsidiary shall have set aside on its books reserves in accordance with GAAP;
(f)
(i) pledges and deposits and other Liens made in the ordinary course of business in compliance with
the Federal Employers Liability Act or any other workers’ compensation, unemployment insurance, employers’ health tax and other social
security laws or regulations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of
such obligations and (ii) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of
(including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or
liability insurance to the Borrower or any Subsidiary;
(g)
deposits and other Liens to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capitalized Lease Obligations), statutory obligations, surety, indemnity, warranty, release, appeal or
similar bonds, performance and return of money bonds, bids, leases, government contracts, trade contracts, agreements with utilities, and
other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred in the
ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of
business;
(h)
zoning restrictions, easements, survey exceptions, trackage rights, leases (other than Capitalized Lease
Obligations), licenses, special assessments, rights-of-way, covenants, conditions, servitudes, declarations, homeowners’ associations and
similar agreements and other restrictions (including minor defects and irregularities in title and similar encumbrances) on or with respect to
the use of Real Property, servicing agreements, development agreements, site plan agreements and other similar encumbrances incurred in
the ordinary course of business and title defects or irregularities that are of a minor nature and that, in the aggregate, do not interfere in any
material respect with the ordinary conduct of the business of the Borrower or any Subsidiary;
(i)
Liens securing Indebtedness permitted by Section 6.01(i) or (j); provided, that such Liens do not apply
to any property or assets of the Borrower or any Subsidiary other than the property or assets acquired, leased, constructed, replaced,
repaired or improved with such Indebtedness (or the Indebtedness Refinanced thereby) or Disposed of in the applicable Sale and Lease-
Back Transaction, and accessions and additions thereto, proceeds and products thereof, customary security deposits and related property;
provided, further, that individual financings provided by one lender may be cross-collateralized to other financings provided by such lender
(and its Affiliates) (it being understood that with respect to any Liens on the Collateral being incurred under this clause (i) to secure
Permitted Refinancing Indebtedness, if Liens on the Collateral securing the Indebtedness being Refinanced (if any) were Junior Liens, then
any Liens on such Collateral being incurred under this clause (i) to secure Permitted Refinancing Indebtedness shall also be Junior Liens);
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Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.03, so long as such
Liens attach only to the property Disposed of and being leased in such transaction and any accessions and additions thereto, proceeds and
products thereof, customary security deposits and related property;
(j)
(k)
Liens securing judgments that do not constitute an Event of Default under Section 7.01(j);
(l)
Liens disclosed by the title insurance policies delivered on or subsequent to the Closing Date and
pursuant to the Collateral and Guarantee Requirement, Section 5.10 or Schedule 5.12 and any replacement, extension or renewal of any
such Lien; provided, that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject
to such Lien prior to such replacement, extension or renewal and any accessions and additions thereto or proceeds and products thereof and
related property; provided, further, that the Indebtedness and other obligations secured by such replacement, extension or renewal Lien are
permitted by this Agreement;
or any Subsidiary in the ordinary course of business;
(m)
any interest or title of a lessor or sublessor under any leases or subleases entered into by the Borrower
(n)
Liens that are contractual rights of set-off (and related pledges) (i) relating to the establishment of
depository relations with banks and other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to
pooled deposits, sweep accounts, reserve accounts or similar accounts of the Borrower or any Subsidiary to permit satisfaction of overdraft
or similar obligations incurred in the ordinary course of business of the Borrower or any Subsidiary, including with respect to credit card
charge-backs and similar obligations, or (iii) relating to purchase orders and other agreements entered into with customers, suppliers or
service providers of the Borrower or any Subsidiary in the ordinary course of business;
(o)
Liens (i) arising solely by virtue of any statutory or common law provision relating to banker’s liens,
rights of set-off or similar rights, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the
ordinary course of business, (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to
brokerage accounts incurred in the ordinary course of business and not for speculative purposes, (iv) in respect of Third Party Funds or (v)
in favor of credit card companies pursuant to agreements therewith;
(p)
Liens securing obligations in respect of trade-related letters of credit, bankers’ acceptances or similar
obligations and completion guarantees permitted under Section 6.01(f) or (o) and covering the property (or the documents of title in respect
of such property) financed by such letters of credit, bankers’ acceptances or similar obligations and completion guarantees and the proceeds
and products thereof;
interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;
(q)
leases or subleases, licenses or sublicenses granted to others in the ordinary course of business not
customs duties in connection with the importation of goods;
(r)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of
connection with any letter of intent or purchase agreement in respect of any Investment permitted hereunder;
(s)
Liens solely on any cash earnest money deposits made by the Borrower or any of the Subsidiaries in
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(t)
(i) Liens with respect to property or assets of any Subsidiary that is not a Loan Party securing
obligations of a Subsidiary that is not a Loan Party permitted under Section 6.01 and (ii) Liens with respect to property or assets of the
applicable joint venture or the Equity Interests of such joint venture securing Indebtedness permitted under Section 6.01 (it being
understood that with respect to any Liens on the Collateral being incurred under this clause (t)(ii) to secure Permitted Refinancing
Indebtedness, if Liens on the Collateral securing the Indebtedness being Refinanced (if any) were Junior Liens, then any Liens on such
Collateral being incurred under this clause (t)(ii) to secure Permitted Refinancing Indebtedness shall also be Junior Liens);
Liens on any amounts held by a trustee or agent under any indenture or other debt agreement issued in
escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture or other debt agreement pursuant to
customary discharge, redemption or defeasance provisions;
(u)
ordinary course of business;
(v)
the prior rights of consignees and their lenders under consignment arrangements entered into in the
agreements to subordinate any interest of the Borrower or any Subsidiary in any accounts receivable
or other proceeds arising from inventory consigned by the Borrower or any of its Subsidiaries pursuant to an agreement entered into in the
ordinary course of business;
(w)
Liens arising from precautionary Uniform Commercial Code financing statements regarding operating
leases or other obligations not constituting Indebtedness or purported Liens evidenced by the filing of precautionary Uniform Commercial
Code financing statements or equivalent filings;
(x)
arrangement and (ii) on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of Unrestricted Subsidiaries;
(y)
Liens (i) on Equity Interests of joint ventures pursuant to the relevant joint venture agreement or
(z)
under clause (c) of the definition thereof;
Liens on securities that are the subject of repurchase agreements constituting Permitted Investments
and Equity Interests of Special Purpose Securitization Subsidiaries;
(aa)
Liens in respect of Permitted Securitization Financings that extend only to the assets subject thereto
the applicable unearned insurance premiums;
(bb)
Liens securing insurance premiums financing arrangements; provided, that such Liens are limited to
interest (or any superior leasehold interest) is subject;
(cc)
in the case of Real Property that constitutes a leasehold interest, any Lien to which the fee simple
Borrower or any Subsidiary Loan Party and (ii) of any Subsidiary that is not Loan Party in favor of any Subsidiary that is not a Loan Party;
(dd)
Liens securing Indebtedness or other obligation (i) of the Borrower or a Subsidiary in favor of the
Liens (i) on not more than $10,000,000 of deposits securing Hedging Agreements entered into for
non-speculative purposes and (ii) on cash or Permitted Investments securing Hedging Agreements in the ordinary course of business
submitted for clearing in accordance with applicable Requirements of Law;
(ee)
documentary letter of credit, bank guarantee or bankers’ acceptance issued or created for
(ff)
Liens on goods or inventory the purchase, shipment or storage price of which is financed by a
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the account of the Borrower or any Subsidiary in the ordinary course of business; provided, that such Lien secures only the obligations of
the Borrower or such Subsidiaries in respect of such letter of credit, bank guarantee or banker’s acceptance to the extent permitted under
Section 6.01;
(gg)
(hh)
[reserved];
[reserved];
(ii)
(x) Liens on Collateral that are Other First Liens, so long as such Other First Liens secure
Indebtedness permitted by Section 6.01(b) or 6.01(y) (and, in each case, Permitted Refinancing Indebtedness in respect thereof), and (y)
Liens on Collateral that are Junior Liens, so long as such Junior Liens secure Indebtedness permitted by Section 6.01(b) or 6.01(y) (and, in
each case, Permitted Refinancing Indebtedness in respect thereof);
goods by the Borrower or any of the Subsidiaries in the ordinary course of business or consistent with past practice;
(jj)
Liens arising out of conditional sale, title retention or similar arrangements for the sale or purchase of
(kk)
Liens to secure any Indebtedness issued or incurred to Refinance (or successive Indebtedness issued
or incurred for subsequent Refinancings) as a whole, or in part, any Indebtedness secured by any Lien permitted by this Section 6.02;
provided, however, that (v) with respect to any Liens on the Collateral being incurred under this clause (kk), if Liens on the Collateral
securing the Indebtedness being Refinanced (if any) were Junior Liens, then such Liens on such Collateral being incurred under this clause
(kk) shall also be Junior Liens, (w) with respect to any Liens on the Collateral being incurred under this clause (kk), if Liens on the
Collateral securing the Indebtedness being Refinanced (if any) were Other First Liens, then such Liens on such Collateral being incurred
under this clause (kk) may also be Other First Liens or Junior Liens, (x) (other than Liens contemplated by the foregoing clauses (v) and
(w)) such new Lien shall be limited to all or part of the same type of property that secured the original Lien (plus improvements on and
accessions to such property, proceeds and products thereof, customary security deposits and any other assets pursuant to after-acquired
property clauses to the extent such assets secured (or would have secured) the Indebtedness being Refinanced), (y) the Indebtedness secured
by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount (or accreted value, if
applicable) or, if greater, committed amount of the applicable Indebtedness at the time the original Lien became a Lien permitted hereunder,
(B) unpaid accrued interest and premium (including tender premiums) and (C) an amount necessary to pay any associated underwriting
discounts, defeasance costs, fees, commissions and expenses, and (z) on the date of the incurrence of the Indebtedness secured by such
Liens, the grantors of any such Liens shall be no different from the grantors of the Liens securing the Indebtedness being Refinanced or
grantors that would have been obligated to secure such Indebtedness or a Loan Party;
(ll)
Liens with respect to property or assets of the Borrower or any Subsidiary securing obligations in an
aggregate outstanding principal amount outstanding that, immediately after giving effect to the incurrence of such Liens, would not exceed
the greater of $20,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
provided that, during the period commencing on the Amendment No. 2 Effective Date and ending on the last day of the Covenant
Adjustment Period, new Liens under this clause (ll) with respect to property or assets of the Borrower or any Subsidiary securing
obligations in an aggregate outstanding principal amount outstanding that, immediately after giving effect to the incurrence of such Liens,
would not exceed $5,000,000;
Liens on property of, or on Equity Interests or Indebtedness of, any person existing at the time (A)
such person becomes a Subsidiary of the Borrower or (B) such person or property is acquired by the Borrower or any Subsidiary; provided
that (i) such Liens do not extend to any other
(mm)
125
assets of the Borrower or any Subsidiary (other than accessions and additions thereto and proceeds or products thereof and other than after-
acquired property) and (ii) such Liens secure only those obligations which they secure on the date such person becomes a Subsidiary or the
date of such acquisition (and any extensions, renewals, replacements or refinancings thereof);
Liens (i) on inventory held by and granted to a local distribution company in the ordinary course of
business and (ii) in accounts purchased and collected by and grated to a local distribution company that has agreed to make payments to the
Borrower or any of its Subsidiaries for such amounts in the ordinary course of business;
(nn)
Liens on any property or asset of the Borrower or any Subsidiary to secure Indebtedness permitted by
Section 6.01(hh); provided that such Liens shall only secure any property or asset owned by the Borrower or Subsidiary incurring such
Indebtedness; and
(oo)
consistent with past practice.
(pp)
Liens on equipment of the Borrower or any Subsidiary granted in the ordinary course of business or
For purposes of determining compliance with this Section 6.02, a Lien securing an item of Indebtedness need not be
permitted solely by reference to one category of permitted Liens (or any portion thereof) described in Sections 6.02(a) through (pp) but may
be permitted in part under any combination thereof. In addition, with respect to any revolving loan Indebtedness or commitment to incur
Indebtedness that is designated to be incurred on any Deemed Date pursuant to clause (C) of the third to last paragraph of Section 6.01, any
Lien that does or that shall secure such Indebtedness may also be designated by the Borrower or any Subsidiary to be incurred on such
Deemed Date and, in such event, any related subsequent actual incurrence of such Lien shall be deemed for purposes of Section 6.01 and
6.02 of this Agreement, without duplication, to be incurred on such prior date (and on any subsequent date until such commitment is funded
or terminated or such election is rescinded or until such time as the related Indebtedness is no longer deemed outstanding pursuant to clause
(C) of the third to last paragraph of Section 6.01), including for purposes of calculating usage of any Permitted Lien. In addition, with respect
to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such
Lien shall also be permitted to secure any Increased Amount of such Indebtedness.
Section 6.03
Sale and Lease-Back Transactions. Enter into any arrangement, directly or indirectly, with any person
whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and
thereafter, as part of such transaction, rent or lease such property or other property that it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a “Sale and Lease-Back Transaction”); provided, that a Sale and Lease-Back Transaction
shall be permitted (a) with respect to (i) Excluded Property, (ii) property owned by the Borrower or any Subsidiary Loan Party that is
acquired after the Closing Date so long as such Sale and Lease-Back Transaction is consummated within 365 days of the acquisition of such
property or (iii) property owned by any Subsidiary that is not a Loan Party regardless of when such property was acquired, and (b) with
respect to any other property owned by the Borrower or any Subsidiary Loan Party, (x) if such Sale and Lease-Back Transaction is of
property owned by the Borrower or any Subsidiary Loan Party as of the Closing Date, the Net Proceeds therefrom are used to prepay the
Term Loans to the extent required by Section 2.11(b) and (y) with respect to any Sale and Lease-Back Transaction pursuant to this clause (b)
with Net Proceeds in excess of $5,000,000 individually or $10,000,000 in the aggregate in any fiscal year, the requirements of the second to
last paragraph of Section 6.05 shall apply to such Sale and Lease-Back Transaction to the extent provided therein.
Investments, Loans and Advances. (i) Purchase or acquire (including pursuant to any merger with a
person that is not a Wholly Owned Subsidiary immediately prior to such merger) any Equity Interests, evidences of Indebtedness or other
securities of any other person, (ii) make
Section 6.04
126
any loans or advances to or Guarantees of the Indebtedness of any other person (other than in respect of (A) intercompany liabilities incurred
in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries and (B) intercompany loans,
advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary
course of business or consistent with past practice), or (iii) purchase or otherwise acquire, in one transaction or a series of related
transactions, (x) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, line
of business or division of such person (each of the foregoing, an “Investment”), except:
(a)
[reserved];
(b)
(i) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any
Subsidiary (or any entity that will become a Subsidiary as a result of such Investment); (ii) intercompany loans from the Borrower or any
Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted
hereunder of the Borrower or any Subsidiary; provided that, as at any date of determination, the aggregate outstanding amount (valued at
the time of the making thereof, and without giving effect to any subsequent change in value) of (A) Investments made after the Closing
Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net outstanding
intercompany loans made outside the ordinary course of business after the Closing Date by the Loan Parties to Subsidiaries that are not
Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing
Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii) shall not exceed $15,000,000;
(c)
(d)
Permitted Investments and Investments that were Permitted Investments when made;
Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for
the Disposition of assets permitted under Section 6.05;
(e)
loans and advances to, or Guarantees of Indebtedness of, officers, directors, employees or consultants
of the Borrower or any Subsidiary (i) in the ordinary course of business or consistent with past practice in an aggregate outstanding amount
(valued at the time of the making thereof, and without giving effect to any subsequent change in value) not to exceed $10,000,000, (ii) in
respect of payroll payments and expenses in the ordinary course of business or consistent with past practice, (iii) for business-related travel
expenses, moving expenses and other similar expenses, in each case, incurred in the ordinary course of business or consistent with past
practice and (iv) in connection with such person’s purchase of Equity Interests of the Borrower solely to the extent that the amount of such
loans and advances shall be contributed to the Borrower in cash as common equity;
(f)
accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary
course of business or consistent with past practice and any assets or securities received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other
credits to suppliers made in the ordinary course of business or consistent with past practice;
Agreements;
(g)
Hedging Agreements entered into for non-speculative purposes and Permitted Call Spread
(h)
Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule
6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to
this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than
pursuant to an increase
127
as required by the terms of any such Investment or contractual commitment as in existence on the Closing Date or as otherwise permitted by
this Section 6.04);
(i)
Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
(j)
Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the
time of the making thereof, and without giving effect to any subsequent change in value) not to exceed the greater of $50,000,000 and 0.50
times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided that (x) during the period
commencing on the Amendment No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period, the aggregate
outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent change in value) of new
Investments made by the Borrower or any Subsidiary shall not exceed $10,000,000 and (y) if any Investment pursuant to this Section
6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary
thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person
remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of
any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(j);
(k)
Investments constituting Permitted Acquisitions so long as immediately after giving effect to such
Permitted Acquisition, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 4.00 to 1.00; provided that no Event of Default
shall have occurred and be continuing; provided, further, that, if immediately after giving effect to such Investment, the Net Total Leverage
Ratio on a Pro Forma Basis exceeds 1.75 to 1.00, the aggregate outstanding amount (valued at the time of the making thereof, and without
giving effect to any subsequent change in value) of Permitted Acquisitions of Subsidiaries that are not Subsidiary Loan Parties or of assets
that are not owned by Subsidiary Loan Parties shall not exceed $65,000,000;
that are not Loan Parties permitted by Section 6.01(m);
(l)
intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries
(m)
Investments received in connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or
consistent with past practice or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of
the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n)
Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower
or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or
consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section
6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o)
acquisitions by the Borrower of obligations of one or more officers or other employees of the
Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of the Borrower, so long as no
cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any
such obligations;
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Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease
Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the
ordinary course of business or consistent with past practice;
(p)
Borrower;
(q)
Investments to the extent that payment for such Investments is made with Equity Interests of the
(r)
Investments in the Equity Interests of one or more newly formed persons that are received in
consideration of the contribution by the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person
or persons; provided, that (i) the fair market value of such assets, determined in good faith by the Borrower, so contributed pursuant to this
clause (r) shall not in the aggregate exceed $10,000,000 and (ii) in respect of each such contribution, a Responsible Officer of the Borrower
shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) immediately after giving effect to such
contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value (as
determined in good faith by the Borrower) of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain
satisfied;
(s)
Investments consisting of Restricted Payments permitted under Section 6.06;
Investments in the ordinary course of business or consistent with past practice consisting of Uniform
Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements
with customers;
(t)
this Section 6.04);
(u)
(v)
(w)
[reserved];
Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to
advances in the form of a prepayment of expenses, so long as such expenses are being paid in
accordance with customary trade terms of the Borrower or such Subsidiary;
(x)
Investments by the Borrower and its Subsidiaries, including loans to any direct or indirect parent of
the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount
(provided, that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section
6.06 for all purposes of this Agreement);
Financings;
(y)
(z)
Investments consisting of Securitization Assets or arising as a result of Permitted Securitization
loans or advances to members representing their deferred initiation deposits or fees, arising in the
ordinary course of business or consistent with past practice;
to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and
equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business or
consistent with past practice;
(aa)
(bb)
[reserved];
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(cc)
Investments in joint ventures; provided that (x) the aggregate outstanding amount (valued at the time
of the making thereof, and without giving effect to any subsequent changes in value) of Investments made after the Closing Date pursuant
to this Section 6.04(cc) shall not exceed the greater of $40,000,000 and 0.40 times the EBITDA calculated on a Pro Forma Basis for the
then most recently ended Test Period and (y) the aggregate outstanding amount (valued at the time of the making thereof, and without
giving effect to any subsequent changes in value) of Investments in joint ventures made during the period commencing on the Amendment
No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period shall not exceed $5,000,000; provided, that, if any
Investment pursuant to this Section 6.04(cc) is made in any person that was not a Subsidiary on the date on which such Investment was
made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a
Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent
permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(cc);
(dd)
[reserved];
(ee)
Investments in any Unrestricted Subsidiaries after giving effect to the applicable Investments, in an
aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent changes in value) not
to exceed $15,000,000; provided, that if any Investment pursuant to this Section 6.04(ee) is made in any person that was not a Subsidiary on
the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower,
upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to
Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on
this Section 6.04(ee);
Ratio on a Pro Forma Basis would not exceed 1.75 to 1.00; provided that no Event of Default shall have occurred and be continuing;
(ff)
any Investment so long as, immediately after giving effect to such Investment, the Net Total Leverage
(gg)
[reserved]; and
Investments made (i) in connection with the exercise of any subscriptions, options, warrants, calls,
puts or other rights or commitments pursuant to agreements set forth on Schedule 3.08(b) or (ii) in satisfaction of obligations under joint
venture agreements existing on the Closing Date.;
(hh)
provided that, notwithstanding anything to the contrary in this Agreement, (x) during the period commencing on the
Amendment No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period, no new Investments shall be made by a
Loan Party in any Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.04(b) and (y) during the period commencing on the
Amendment No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period, no new Investments shall be made by
pursuant to Section 6.04(k) or (ee) above.
The amount of Investments that may be made at any time pursuant to the proviso in Section 6.04(b) or Section 6.04(j)
(such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at
such time under the other Related Section; provided, that the amount of each such increase in respect of one Related Section shall be treated
as having been used under the other Related Section.
Section 6.04 may be made through intermediate Investments in Subsidiaries
Any Investment in any person other than the Borrower or a Subsidiary Loan Party that is otherwise permitted by this
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that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of
Investments pursuant to any clause set forth above.
The amount of any Investment made other than in the form of cash or cash equivalents shall be the fair market value
thereof, which shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of
such Investment or as of the date of the definitive agreement with respect to such Investment, and without giving effect to any subsequent
change in value.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any
returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually
received in respect of any such Investment.
For purposes of determining compliance with this covenant, an Investment need not be permitted solely by reference to
one category of permitted Investments (or any portion thereof) described in Section 6.04(a) through (hh) but may be permitted in part under
any combination thereof.
Section 6.05
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other
person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions)
all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase,
lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of
business of a person, except that this Section 6.05 shall not prohibit:
(a)
(i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse
factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary or the conversion of accounts
receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of
business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as
determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by
the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or determined in good faith by the
Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) the
Disposition of Permitted Investments in the ordinary course of business;
(b)
if at the time thereof and immediately after giving effect thereto no Event of Default shall have
occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a
transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party
in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and
(ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04),
(iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a
Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary, if the Borrower determines in good
faith that such liquidation, dissolution or change in form is advisable or in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment
permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by
Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by
Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi)
any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section
6.05;
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Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that
any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in
compliance with Section 6.04;
(c)
6.06;
(d)
(e)
(f)
receivables financing transaction;
Sale and Lease-Back Transactions permitted by Section 6.03;
Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section
Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts
with Section 2.11(b) to the extent required thereby;
(g)
other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance
Permitted Acquisitions (including any merger, consolidation or amalgamation in order to effect a
Permitted Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is
the surviving entity or the requirements of Section 6.05(o) are otherwise complied with;
(h)
ordinary course of business or consistent with past practice;
(i)
leases, assignments, licenses or subleases or sublicenses of any real or personal property in the
Dispositions of inventory or sales, transfers, dedication to the public, abandonment or other
Dispositions of Intellectual Property of the Borrower and its Subsidiaries determined by the management of the Borrower, in its reasonable
business judgment, to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(j)
clause (a) of the definition of “Net Proceeds”;
(k)
acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of
the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including
pursuant to Permitted Securitization Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization
Financing;
(l)
obligations in respect of any Hedging Agreement;
(m)
to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of
(n)
any exchange of assets for services and/or other assets used or useful in a Similar Business of
comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration
received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a
swap with a fair market value (as determined in good faith by the Borrower) in excess of $5,000,000, the Administrative Agent shall have
received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with
a fair market value (as determined in good faith by the Borrower) in excess of $10,000,000, such exchange shall have been approved by at
least a majority of the Board of Directors of the Borrower; provided, further, that (A) no Default or Event of Default exists or would result
therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with
respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;
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(o)
if at the time thereof and immediately after giving effect thereto no Event of Default shall have
occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated
with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower
(such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the
United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the
obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form
reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall
have by a supplement to the Subsidiary Guarantee Agreement confirmed that its guarantee thereunder shall apply to any Successor
Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation,
shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as
reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation,
shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and
(6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or
consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of
counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such
other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood
that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and
other rights or commitments pursuant to agreements set forth on Schedule 3.08(b).
(p)
Dispositions in connection with the exercise of any subscriptions, options, warrants, puts, calls or
Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g)
or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be
permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the
shortfall is permitted as an Investment under Section 6.04, (ii) no Default or Event of Default shall have occurred and be continuing or would
result therefrom and (iii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments;
provided, that the provisions of this clause (iii) shall not apply to any individual transaction or series of related transactions involving assets
with a fair market value (as determined in good faith by the Borrower) of less than $10,000,000 or to other transactions involving assets with
a fair market value (as determined in good faith by the Borrower) of not more than the greater of $20,000,000 and 0.20 times the EBITDA
calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this
Agreement; provided, further, that for purposes of this clause (iii), each of the following shall be deemed to be cash: (a) the amount of any
liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the
transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other
securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary
into cash within 180 days after receipt thereof (to the extent of the cash received), (c) any Designated Non-Cash Consideration received by
the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the
Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time
outstanding, not to exceed the greater of $50,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended
immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-
Cash Consideration being
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measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary
that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any
guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the
Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons
who are not the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled.
For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold,
conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either,
at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of
the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.
Section 6.06
Dividends and Distributions. Declare or pay, directly or indirectly, any dividend or make, directly or
indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with
respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional
Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem,
purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set
aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the
person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a)
Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower
(or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary
and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the
Borrower or such Subsidiary) based on their relative ownership interests);
(b)
Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal,
accounting and other professional fees and expenses of any Parent Entity, (ii) fees and expenses related to any public offering or private
placement of Equity Interests or Indebtedness of any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other
fees and expenses in connection with the maintenance of any Parent Entity’s existence and any Parent Entity’s ownership of the Borrower,
(iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period (or portion thereof) for
which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S.
federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or
for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C
corporation for U.S. federal and/or applicable state, local or foreign tax purposes, Restricted Payments to any direct or indirect parent of the
Borrower in an amount not to exceed the amount of any U.S. federal, state, local and/or foreign income taxes that the Borrower and/or its
Subsidiaries, as applicable, would have paid for such taxable period (or portion thereof) had the Borrower and/or its Subsidiaries, as
applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group (without duplication, for the avoidance of doubt, of any
amount of such taxes actually directly paid by the Borrower and/or any of its Subsidiaries to the relevant taxing authority, if any) and (vi)
customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors, employees and
consultants of any Parent Entity, in each case in order to
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permit any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted
Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its
Subsidiaries (which (x) shall be 100% at any time that, as the case may be, any Parent Entity owns no material assets other than the Equity
Interests of the Borrower or any other Parent Entity and assets incidental to such equity ownership and (y) in all other cases shall be as
determined in good faith by the Borrower);
(c)
Restricted Payments may be made, the proceeds of which are used to purchase or redeem the Equity
Interests of the Borrower (including related stock appreciation rights or similar securities) held by then present or former directors,
consultants, officers or employees of the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect
upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement
under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under
this clause (c) shall not exceed in any fiscal year $15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x)
received by the Borrower during such calendar year from sales of Equity Interests of the Borrower to directors, consultants, officers or
employees of the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements, (y) the
amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses
otherwise payable to members of management, directors or consultants of the Borrower or the Subsidiaries in connection with the
Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any
subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members
of management of the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of the Borrower will not be deemed
to constitute a Restricted Payment for purposes of this Section 6.06;
stock options if such Equity Interests represent a portion of the exercise price of such options;
(d)
any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of
(e)
(f)
[reserved];
Restricted Payments may be made as required under the Tax Matters Agreement; provided that such
payments are not duplicative of payments under clause (b) of this Section 6.06;
exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(g)
Restricted Payments may be made to pay, in cash, in lieu of the issuance of fractional shares, upon the
(h)
[reserved];
(i)
Restricted Payments may be made to any Parent Entity to finance any Investment that if made by the
Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment
shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing
thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the
merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a
Subsidiary in order to consummate such Permitted Acquisition or Investment, in each case, in accordance with the requirements of Section
5.10;
0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended
(j)
Restricted Payments may be made in an aggregate amount not to exceed greater of $50,000,000 and
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Test Period; provided that no Event of Default shall have occurred and be continuing or would result therefrom;
(k)
(l)
Excluded Contributions;
[reserved];
Restricted Payments may be made in an aggregate amount not to exceed the aggregate amount of
any Restricted Payment may be made so long as no Default or Event of Default has occurred and is
continuing or would result therefrom and, after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis
would not exceed 1.75 to 1.00; and
(m)
Securitization Financing.;
(n)
any consideration, payment, dividend, distribution or other transfer in connection with a Permitted
provided, further, that, notwithstanding anything to the contrary in this Agreement, the aggregate amount of new Restricted Payments made
pursuant to this Section 6.06(c), (j), (m) and (n) during the period commencing on the Amendment No. 2 Effective Date and ending on the
last day of the Covenant Adjustment Period, together with the aggregate amount of new Restricted Junior Financing Payments made pursuant
to Sections 6.09(b)(i)(F), (G) (solely to the extent such Net Share Settlement is in the form of cash) and (H) below during the period
commencing on the Amendment No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period, shall not exceed
$5,000,000 (it is understood that Restricted Payments made pursuant to this second proviso shall be permitted only to the extent permitted
under the other provisions of this Section 6.06 and this second proviso is not intended to, and shall not provide, Restricted Payments capacity
not otherwise permitted by this Section 6.06).
Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of
any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of
declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment or
redemption, purchased, defeasance or other payment would have complied with the provisions of this Agreement.
The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the fair market
value thereof, which shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the
time of such Restricted Payment or as of the date of the definitive agreement with respect to such Restricted Payment.
For purposes of determining compliance with this covenant, a Restricted Payment need not be permitted solely by
reference to one category of permitted Restricted Payments (or any portion thereof) described in Section 6.06(a) through (n) but may be
permitted in part under any combination thereof.
Section 6.07
Transactions with Affiliates. (a) Sell or transfer any property or assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other transaction with, any of its Affiliates (other than the Borrower and the Subsidiaries
or any person that becomes a Subsidiary as a result of such transaction) in a transaction (or series of related transactions) involving aggregate
consideration in excess of $10,000,000, unless such transaction is (i) otherwise permitted (or required) under this Agreement or (ii) upon
terms that are substantially no less favorable, when taken as a whole, to the Borrower or such Subsidiary, as applicable, than would be
obtained in a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of the
Borrower or such Subsidiary in good faith.
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(b)
The foregoing clause (a) shall not prohibit, to the extent otherwise permitted under this Agreement,
any issuance of securities, or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership plans
approved by the Board of Directors of the Borrower or any Parent Entity,
(i)
of the Subsidiaries in accordance with Section 6.04(e),
(ii)
loans or advances to employees or consultants of the Borrower (or any Parent Entity) or any
transactions among the Borrower or any Subsidiary or any entity that becomes a Subsidiary as
a result of such transaction (including via merger, consolidation or amalgamation in which the Borrower or a Subsidiary is the
surviving entity),
(iii)
(iv)
the payment of fees, reasonable out-of-pocket costs and indemnities and employment and
severance arrangements provided to, or on behalf of or for the benefit of, directors, officers, consultants and employees of the
Borrower (or any Parent Entity) and the Subsidiaries in the ordinary course of business (limited, in the case of any Parent Entity, to
the portion of such fees and expenses that are allocable to the Borrower and its Subsidiaries which (x) shall be 100% for so long as
such Parent Entity owns no assets other than the Equity Interests of the Borrower or another Parent Entity and assets incidental to
the ownership of the Borrower and its Subsidiaries and (y) in all other cases shall be as determined in good faith by management of
the Borrower),
(v)
subject to the limitations set forth in Section 6.07(b)(xiv), if applicable, permitted transactions,
agreements and arrangements in existence on the Closing Date and, to the extent involving aggregate consideration in excess of
$5,000,000, set forth on Schedule 6.07 or any amendment thereto or replacement thereof or similar arrangement to the extent such
amendment, replacement or arrangement is not materially adverse to the Lenders when taken as a whole (as determined by the
Borrower in good faith),
(vi)
(A) any employment agreements entered into by the Borrower or any of the Subsidiaries in
the ordinary course of business, (B) any subscription agreement or similar agreement pertaining to the repurchase of Equity
Interests pursuant to put/call rights or similar rights with employees, officers or directors, and (C) any employee compensation,
benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable
employment contract and transactions pursuant thereto,
6.04,
(vii)
(viii)
(ix)
Restricted Payments permitted under Section 6.06 and Investments permitted under Section
[reserved],
[reserved],
(x)
into in the ordinary course of business,
transactions for the purchase or sale of goods, equipment, products, parts and services entered
(xi)
any transaction in respect of which the Borrower delivers to the Administrative Agent a letter
addressed to the Board of Directors of the Borrower from an accounting, appraisal or investment banking firm, in each case of
nationally recognized standing that is in the good faith determination of the Borrower qualified to render such letter, which letter
states that (i) such
137
transaction is on terms that are substantially no less favorable, when taken as a whole, to the Borrower or such Subsidiary, as
applicable, than would be obtained in a comparable arm’s-length transaction with a person that is not an Affiliate or (ii) such
transaction is fair, when taken as a whole, to the Borrower or such Subsidiary, as applicable, from a financial point of view,
(xii)
(xiii)
[reserved],
transactions with joint ventures for the purchase or sale of goods, equipment, products, parts
and services entered into in the ordinary course of business or consistent with past practice,
(xiv)
(xv)
[reserved],
the issuance, sale or transfer of Equity Interests of the Borrower or any Subsidiary and capital
contributions to the Borrower or any Subsidiary,
(xvi)
(xvii)
[reserved],
payments by the Borrower and the Subsidiaries pursuant to a tax sharing agreement or
arrangement (whether written or as a matter of practice) that complies with clause (v) of Section 6.06(b),
(xviii)
transactions pursuant to any Permitted Securitization Financing,
payments, loans (or cancellation of loans) or advances to employees or consultants that are (i)
approved by a majority of the Disinterested Directors of the Borrower in good faith, (ii) made in compliance with applicable law
and (iii) otherwise permitted under this Agreement,
(xix)
transactions with customers, clients or suppliers, or purchasers or sellers of goods or services,
in each case in the ordinary course of business or consistent with past practice otherwise in compliance with the terms of this
Agreement that are fair to the Borrower or the Subsidiaries (in the good faith determination of the Borrower),
(xx)
(xxi)
transactions between the Borrower or any of the Subsidiaries and any person, a director of
which is also a director of the Borrower or any direct or indirect parent company of the Borrower; provided, however, that (A) such
director abstains from voting as a director of the Borrower or such direct or indirect parent company, as the case may be, on any
matter involving such other person and (B) such person is not an Affiliate of the Borrower for any reason other than such director’s
acting in such capacity,
(xxii)
transactions permitted by, and complying with, the provisions of Section 6.05, and
intercompany transactions undertaken in good faith (as certified by a Responsible Officer of
the Borrower) for the purpose of improving the consolidated tax efficiency of the Borrower and the Subsidiaries and not for the
purpose of circumventing any covenant set forth herein.
(xxiii)
Notwithstanding the foregoing, Nuance Communications, Inc. and its Subsidiaries shall not be considered an Affiliate of
the Borrower or its Subsidiaries with respect to any transaction, so long as such transaction is in the ordinary course of business or pursuant
to the Separation and Distribution
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Agreement, the Tax Matters Agreement or the Transition Services Agreement entered into with the Borrower and/or its Subsidiaries or, in
each case, amendments, modifications or supplements thereto or replacements thereof that are not materially adverse, taken as a whole, to the
Borrower or its Subsidiaries (as determined by the Borrower in good faith).
Section 6.08
Business of the Borrower and the Subsidiaries. Notwithstanding any other provisions hereof, engage at
any time to any material respect in any business or business activity substantially different from any business or business activity conducted
by any of them on the Closing Date or any Similar Business, and in the case of a Special Purpose Securitization Subsidiary, Permitted
Securitization Financings.
Incorporation, By-Laws and Certain Other Agreements; etc.
Section 6.09
Limitation on Payments and Modifications of Indebtedness; Modifications of Certificate of
(a) Amend or modify in any manner materially adverse to the Lenders when taken as a whole (as
determined in good faith by the Borrower), or grant any waiver or release under or terminate in any manner (if such granting or termination
shall be materially adverse to the Lenders when taken as a whole (as determined in good faith by the Borrower)), the articles or certificate of
incorporation, by-laws, limited liability company operating agreement, partnership agreement or other organizational documents of the
Borrower or any of the Subsidiary Loan Parties.
(b)
(i) Make, directly or indirectly, any payment or other distribution (whether in cash, securities or other
property) of, or in respect of, principal of or interest on any Junior Financing, or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination in respect of any Junior Financing (all of the foregoing, “Restricted Junior Financing Payments”), except for:
6.01;
(A)
Refinancings with any Indebtedness permitted to be incurred under Section
(B)
payments of regularly-scheduled interest and fees due thereunder, other non-
principal payments thereunder, any mandatory prepayments of principal, interest and fees thereunder, scheduled payments thereon
necessary to avoid the Junior Financing from constituting “applicable high yield discount obligations” within the meaning of
Section 163(i)(l) of the Code, and, to the extent this Agreement is then in effect, principal on the scheduled maturity date of any
Junior Financing (or within twelve months thereof);
payments or distributions in respect of all or any portion of the Junior
Financing with the proceeds contributed to the Borrower from the issuance, sale or exchange of Equity Interests that are not
Disqualified Stock;
(C)
(D)
(E)
the conversion of any Junior Financing to Equity Interests of the Borrower;
[reserved].
payments and distributions in an aggregate amount (valued at the time of the
making thereof, and without giving effect to any subsequent change in value) not to exceed $15,000,000; provided, that no Event of
Default shall have occurred and be continuing;
(F)
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(G)
any Net Share Settlement in respect of Convertible Securities constituting
Junior Financing in an amount not to exceed the outstanding principal amount of the Convertible Securities acquired upon the
conversion for which such Net Share Settlement is paid; provided that, after giving effect to such Net Share Settlement, the
aggregate amount of (x) the Borrower’s total unrestricted cash (calculated in a manner consistent with the consolidated balance
sheet of the Borrower required to be furnished to the Administrative Agent pursuant to Section 5.04) plus (y) the difference between
the Revolving Facility Commitment and the Revolving Facility Credit Exposure, shall not be less than $25,000,000 as of the date of
such Net Share Settlement; and
any payment or distribution in respect of Junior Financing may be made so
long as no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect to such
payment or distribution, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 1.75 to 1.00.;
(H)
provided, further, that, notwithstanding anything to the contrary in this Agreement, the aggregate amount of new Restricted Junior Financing
Payments made pursuant to Section 6.09(b)(i)(F), (G) (solely to the extent such Net Share Settlement is in the form of cash) and (H) during
the period commencing on the Amendment No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period, together with
the aggregate amount of new Restricted Payments made pursuant to Section 6.06(c), (j), (m) and (n) above during the period commencing on
the Amendment No. 2 Effective Date and ending on the last day of the Covenant Adjustment Period, shall not exceed $5,000,000 (it is
understood that Restricted Junior Financing Payments made pursuant to this second proviso shall be permitted only to the extent permitted
under Section 6.09(b)(i)(F), (G) and/or (H) and this second proviso is not intended to, and shall not provide, Restricted Junior Financing
Payments capacity not otherwise permitted by Section 6.09(b)(i)(F), (G) or (H)).
(ii)
Amend or modify, or permit the amendment or modification of, any provision of any Junior
Financing that constitutes Material Indebtedness, or any agreement, document or instrument evidencing or relating thereto, other
than amendments or modifications that (A) are not materially adverse to Lenders when taken as a whole (as determined in good
faith by the Borrower) and that do not affect the subordination or payment provisions thereof (if any) in a manner adverse to the
Lenders when taken as a whole (as determined in good faith by the Borrower) or (B) otherwise comply with the definition of
“Permitted Refinancing Indebtedness.”
(c)
Permit any Material Subsidiary to enter into any agreement or instrument that by its terms restricts (i)
the payment of dividends or distributions or the making of cash advances to the Borrower or any Subsidiary that is a direct or indirect
parent of such Subsidiary or (ii) the granting of Liens by the Borrower or such Material Subsidiary that is a Loan Party pursuant to the
Security Documents, in each case other than those arising under any Loan Document, except, in each case, restrictions existing by reason
of:
(A)
restrictions imposed by applicable law;
(B)
contractual encumbrances or restrictions in effect on the Closing Date, including
under Indebtedness existing on the Closing Date and set forth on Schedule 6.01, any Refinancing Notes or any agreements related to any
Permitted Refinancing Indebtedness in respect of any such Indebtedness and, in each case, any similar contractual encumbrances or
restrictions and any amendment, modification, supplement, replacement or refinancing of such agreements or instruments that does not
materially expand the scope of any such encumbrance or restriction (as determined in good faith by the Borrower);
140
sale or disposition of the Equity Interests or assets of a Subsidiary pending the closing of such sale or disposition;
(C)
any restriction on a Subsidiary imposed pursuant to an agreement entered into for the
applicable to joint ventures entered into in the ordinary course of business or consistent with past practice;
(D)
customary provisions in joint venture agreements and other similar agreements
permitted by this Agreement to the extent that such restrictions apply only to the property or assets securing such Indebtedness;
(E)
any restrictions imposed by any agreement relating to secured Indebtedness
any restrictions imposed by any agreement relating to Indebtedness incurred
pursuant to Section 6.01 or Permitted Refinancing Indebtedness in respect thereof, to the extent such restrictions are not materially more
restrictive, taken as a whole, than the restrictions contained in this Agreement or are market terms at the time of issuance (in each case as
determined in good faith by the Borrower);
(F)
other similar agreements entered into in the ordinary course of business or consistent with past practice;
(G)
customary provisions contained in leases or licenses of Intellectual Property and
control deemed an assignment) of any lease governing a leasehold interest;
(H)
customary provisions restricting subletting or assignment (including any change of
ordinary course of business;
(I)
customary provisions restricting assignment of any agreement entered into in the
customary restrictions and conditions contained in any agreement relating to the sale,
transfer, lease or other disposition of any asset permitted under Section 6.05 pending the consummation of such sale, transfer, lease or other
disposition;
(J)
customary restrictions and conditions contained in the document relating to any
Lien, so long as (1) such Lien is a Permitted Lien and such restrictions or conditions relate only to the specific asset subject to such Lien, and
(2) such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 6.09;
(K)
(L)
customary net worth provisions imposed by suppliers, customers or landlords of
Real Property under contracts entered into in the ordinary course of business or consistent with past practice or customary restrictions on cash
or other deposits or net worth arising in connection with any Liens permitted under Section 6.02 so long as the Borrower has determined in
good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrower and its Subsidiaries to meet
their ongoing obligations under the Loan Documents;
such agreement was not entered into in contemplation of such person becoming a Subsidiary;
(M)
any agreement in effect at the time such subsidiary becomes a Subsidiary, so long as
a Subsidiary of the Borrower that is not a Subsidiary Loan Party;
(N)
restrictions in agreements representing Indebtedness permitted under Section 6.01 of
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asset sale agreements otherwise permitted hereby as long as such restrictions relate to the Equity Interests and assets subject thereto;
(O)
customary restrictions contained in leases, subleases, licenses or Equity Interests or
into in the ordinary course of business;
(P)
restrictions on cash or other deposits imposed by customers under contracts entered
Special Purpose Securitization Subsidiary; and
(Q)
restrictions contained in any Permitted Securitization Document with respect to any
(R)
any encumbrances or restrictions of the type referred to in Section 6.09(c)(i) and
6.09(c)(ii) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings of or similar arrangements to the contracts, instruments or obligations referred to in clauses (A) through (Q) above; provided,
that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or similar
arrangements are, in the good faith judgment of the Borrower, not materially more restrictive with respect to such dividend and other
payment restrictions than those contained in the dividend or other payment restrictions as contemplated by such provisions prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding, replacement, refinancing or similar arrangement.
Fiscal Year. In the case of the Borrower, permit any change to its fiscal year without prior notice to the
Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any
adjustments to this Agreement that are necessary to reflect such change in fiscal year.
Section 6.10
Section 6.11
Financial Covenants.
Permit the Net Secured Leverage Ratio as of the last day of any fiscal quarter (beginning with the
fiscal quarter ending September 30, 2020) to exceed (x) during the Covenant Adjustment Period, 4.25 to 1.00 and (y) otherwise, 3.25 to
1.00 (the “Secured Leverage Financial Covenant”).
(a)
(b)
Permit the Net Total Leverage Ratio as of the last day of any fiscal quarter (beginning with the fiscal
quarter ending September 30, 2020) to exceed 4.25 to 1.00 (the “Total Leverage Financial Covenant”); provided that, notwithstanding
anything to the contrary in this Agreement, during the Covenant Adjustment Period, the Borrower shall not be required to comply with the
Total Leverage Financial Covenant.
(c)
Permit Liquidity as of the last day of any fiscal quarter (beginning with the fiscal quarter ending
September 30, 2020) to be less than (x) during the Covenant Adjustment Period, $125,000,000 and (y) otherwise, $75,000,000 (the
“Liquidity Financial Covenant” and, together with the Secured Leverage Financial Covenant and the Total Leverage Financial Covenant,
the “Financial Covenants”).
amount of Capital Expenditures made during the Covenant Adjustment Period shall not exceed $7,500,000.
Section 1.02
Capital Expenditures. Notwithstanding anything to the contrary in this Agreement, the aggregate
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ARTICLE VII
Events of Default
Default”):
Section 7.01
Events of Default. In case of the happening of any of the following events (each, an “Event of
(a)
any representation or warranty made or deemed made by the Borrower or any Subsidiary Loan Party
herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove to have been false or
misleading in any material respect when so made or deemed made and such false or misleading representation or warranty (if curable) shall
remain false or misleading for a period of 30 days after notice thereof from the Administrative Agent to the Borrower;
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(b)
default shall be made in the payment of any principal of any Loan when and as the same shall become
(c)
default shall be made in the payment of any interest on any Loan or the reimbursement with respect to
any L/C Disbursement or in the payment of any Fee or any other amount (other than an amount referred to in clause (b) above) due under
any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five
Business Days;
condition or agreement contained in, Section 5.01(a), 5.05(a), or 5.08 or in Article VI;
(d)
default shall be made in the due observance or performance by the Borrower of any covenant,
(e)
(i) default shall be made in the due observance or performance by the Borrower or any of the
Subsidiary Loan Parties of any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses (b),
(c) and (d) above and Section 5.12) and such default shall continue unremedied for a period of 30 days (or 60 days if such default results
solely from the failure of a Subsidiary that is not a Loan Party to duly observe or perform any such covenant, condition or agreement) after
notice thereof from the Administrative Agent to the Borrower or (ii) default shall be made in the due observance or performance by the
Borrower or any of the Subsidiary Loan Parties of Section 5.12 and such default shall continue unremedied for a period of 15 days after
notice thereof from the Administrative Agent to the Borrower;
(f)
(i) any event or condition occurs that (A) results in any Material Indebtedness becoming due prior to
its scheduled maturity (other than, for the avoidance of doubt, Material Indebtedness with respect to Permitted Securitization Financings) or
(B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee
or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; or (ii) the Borrower or any of the Subsidiaries shall fail to pay the principal of any
Material Indebtedness at the stated final maturity thereof; provided, that this clause (f) shall not apply to any secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is
permitted hereunder and under the documents providing for such Indebtedness;
(g)
there shall have occurred a Change in Control;
143
(h)
an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of the Borrower or any of the Material Subsidiaries, or of a substantial part of the
property or assets of the Borrower or any Material Subsidiary, under the U.S. Bankruptcy Code, as now constituted or hereafter amended, or
any other Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any of the Material Subsidiaries or for a substantial part of the property or assets of the Borrower or any of the Material
Subsidiaries or (iii) the winding-up or liquidation of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder);
and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i)
the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking relief under the U.S. Bankruptcy Code, as now constituted or hereafter amended, or any other Debtor Relief Law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in
clause (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any of the Material Subsidiaries or for a substantial part of the property or assets of the Borrower or any Material
Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) become unable or admit in writing its inability or fail generally to pay its debts as they become
due;
(j)
the failure by the Borrower or any Material Subsidiary to pay one or more final judgments
aggregating in excess of $30,000,000 (to the extent not covered by insurance), which judgments are not discharged or effectively waived or
stayed for a period of 45 consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of
the Borrower or any Material Subsidiary to enforce any such judgment;
(k)
(i) an ERISA Event shall have occurred, (ii) the PBGC shall institute proceedings (including giving
notice of intent thereof) to terminate any Plan or Plans, (iii) the Borrower or any Subsidiary or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is being terminated, within the meaning of Title IV of ERISA, or (iv)
the Borrower or any Subsidiary shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or
conditions, if any, would reasonably be expected to have a Material Adverse Effect; or
(l)
(i) any Loan Document shall for any reason be asserted in writing by the Borrower or any Subsidiary
Loan Party not to be a legal, valid and binding obligation of any party thereto (other than in accordance with its terms), (ii) any security
interest purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall
cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be (other than, in each case, in accordance with its
terms), a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security
Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties covered
thereby, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations as
they apply to pledges of Equity Interests of Foreign Subsidiaries or the application thereof, or from the failure of the Collateral Agent to
maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or to file Uniform
Commercial Code continuation statements and except to the extent that such loss is covered by a lender’s title insurance policy and the
Administrative Agent shall be reasonably satisfied with the credit of such insurer, or (iii) a
144
material portion of the Guarantees pursuant to the Security Documents by the Subsidiary Loan Parties guaranteeing the Obligations shall
cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by any Subsidiary Loan
Party not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no
Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such
security interest and Lien, such security interest and Lien is replaced and the rights, powers and privileges of the Secured Parties are not
materially adversely affected by such replacement;
then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i) terminate forthwith the Commitments, (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary
notwithstanding and (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to
Section 2.05(j); and in any event with respect to the Borrower described in clause (h) or (i) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the
Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(j), without
presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained
herein or in any other Loan Document to the contrary notwithstanding.
For purposes of clauses (h), (i) and (j) of this Section 7.01, “Material Subsidiary” (1) shall mean any Subsidiary that would not be an
Immaterial Subsidiary under clause (a) of the definition thereof and (2) shall exclude any Special Purpose Securitization Subsidiary.
Section 7.02
Treatment of Certain Payments. Subject to the terms of any applicable Intercreditor Agreement, any
amount received by the Administrative Agent or the Collateral Agent from any Loan Party (or from proceeds of any Collateral) following
any acceleration of the Obligations under this Agreement or any Event of Default with respect to the Borrower under Section 7.01(h) or (i), in
each case that is continuing, shall be applied: (i) first, ratably, to pay any fees, indemnities or expense reimbursements then due to the
Administrative Agent or the Collateral Agent from the Borrower (other than in connection with any Secured Cash Management Agreement
or Secured Hedge Agreement), (ii) second, towards payment of interest and fees then due from the Borrower hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (iii) third, towards payment of
unreimbursed L/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed L/C Disbursements then due to such parties, (iv) fourth, towards payment of other Obligations
(including Obligations of any Loan Party or Subsidiary, as applicable, owing under or in respect of any Secured Cash Management
Agreement or Secured Hedge Agreement) then due from the Borrower or any Subsidiary, ratably among the parties entitled thereto in
accordance with the amounts of such Obligations then due to such parties and (v) last, the balance, if any, after all of the Obligations have
been paid in full, to the Borrower or as otherwise required by Requirements of Law.
Section 7.03
[Reserved].
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ARTICLE VIII
The Agents
Section 8.01
Appointment. (a) Each Lender (in its capacities as a Lender and on behalf of itself and its Affiliates as
potential counterparties to Secured Cash Management Agreements and Secured Hedge Agreements) and each Issuing Bank (in such
capacities and on behalf of itself and its Affiliates as potential counterparties to Secured Cash Management Agreements and Secured Hedge
Agreements) hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the
other Loan Documents, including as the Collateral Agent for such Lender and the other Secured Parties under the Security Documents, and
each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the
Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document
governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.
(b)
In furtherance of the foregoing, each Lender (in its capacities as a Lender and on behalf of itself and
its Affiliates as potential counterparties to Secured Cash Management Agreements or Secured Hedge Agreements) and each Issuing Bank
(in such capacities and on behalf of itself and its Affiliates as potential counterparties to Secured Cash Management Agreements and
Secured Hedge Agreements) hereby appoints and authorizes the Collateral Agent to act as the agent of such Lender for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations,
together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and any Subagents
appointed by the Collateral Agent pursuant to Section 8.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Security Documents, or for exercising any rights or remedies thereunder at the direction of the Collateral Agent)
shall be entitled to the benefits of this Article VIII (including, without limitation, Section 8.07) as though the Collateral Agent (and any such
Subagents) were an “Agent” under the Loan Documents, as if set forth in full herein with respect thereto.
Section 8.02
Delegation of Duties. The Administrative Agent and the Collateral Agent may execute any of their
respective duties under this Agreement and the other Loan Documents (including for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof)) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care. Each Agent may also from time to time, when it deems it to be necessary
or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “Subagent”) with
respect to all or any part of the Collateral; provided, that no such Subagent shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in writing by the Administrative Agent or the Collateral Agent. Should any
instrument in writing from the Borrower or any other Loan Party be required by any Subagent so appointed by an Agent to more fully or
certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party
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to, execute, acknowledge and deliver any and all such instruments promptly upon request by such Agent. If any Subagent, or successor
thereto, shall become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Subagent, to the extent
permitted by law, shall automatically vest in and be exercised by the Administrative Agent or the Collateral Agent until the appointment of a
new Subagent. No Agent shall be responsible for the negligence or misconduct of any agent, attorney-in-fact or Subagent that it selects with
reasonable care.
Section 8.03
Exculpatory Provisions. None of the Agents, or their respective Affiliates or any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are
found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such person’s own gross
negligence or willful misconduct) or (b) responsible in any manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received by any Agent under or in connection with, this Agreement or
any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. No Agent shall be
under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party. No Agent shall
have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the
foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has
occurred and is continuing, and (b) no Agent shall, except as expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated
to or obtained by such Agent or any of its Affiliates in any capacity. The Agents shall be deemed not to have knowledge of any Default or
Event of Default unless and until written notice describing such Default or Event of Default is given to the Administrative Agent by the
Borrower, a Lender or an Issuing Bank. No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or
document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the
sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent. No Cash Management Bank or Hedge Bank that obtains the benefits
of Section 7.02, any Guarantee or any Collateral by virtue of the provisions hereof or of any Guarantee or any Security Document shall have
any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in
respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only
to the extent expressly provided in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent shall not
be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under
Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management
Bank or Hedge Bank, as the case may be.
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Section 8.04
Reliance by Agents. Each Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) or conversation believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper person. Each Agent also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper person, and shall not incur any liability for relying thereon. In determining compliance with any
condition hereunder to any Credit Event, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Bank, each Agent
may presume that such condition is satisfactory to such Lender or Issuing Bank unless such Agent shall have received notice to the contrary
from such Lender or Issuing Bank prior to such Credit Event. Each Agent may consult with legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts. Each Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with such Agent. Each Agent shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by
this Agreement, all or other Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of
the Required Lenders (or, if so specified by this Agreement, all or other Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
Section 8.05
Notice of Default. Neither Agent shall be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless such Agent has received written notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all or other Lenders); provided, that unless and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Lenders.
Section 8.06
Non-Reliance on Agents and Other Lenders. Each Lender and Issuing Bank expressly acknowledges
that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender and Issuing
Bank represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal of, and investigation into the business, operations, property,
financial and other condition and creditworthiness of, the Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates. Except for notices, reports and
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other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into the
possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
Section 8.07
Indemnification. The Lenders agree to indemnify each Agent and the Revolving Facility Lenders agree
to indemnify each Issuing Bank, in each case, in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), in the amount of its pro rata share (based on its aggregate Revolving Facility Credit Exposure and, in the
case of the indemnification of each Agent, outstanding Term Loans and unused Commitments hereunder; provided, that the aggregate
principal amount of L/C Disbursements owing to any Issuing Bank shall be considered to be owed to the Revolving Facility Lenders ratably
in accordance with their respective Revolving Facility Credit Exposure) (determined at the time such indemnity is sought), from and against
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such
Agent or such Issuing Bank in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or
any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent or Issuing Bank under or in connection with any of the foregoing; provided, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s or Issuing Bank’s
gross negligence or willful misconduct. The failure of any Lender to reimburse any Agent or Issuing Bank, as the case may be, promptly
upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent or Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Agent or Issuing Bank, as the case may be,
for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse such Agent or Issuing
Bank, as the case may be, for such other Lender’s ratable share of such amount. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
Section 8.08
Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to, accept deposits
from, and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Loans
made or renewed by it and with respect to any Letter of Credit issued, or Letter of Credit participated in, by it, each Agent shall have the
same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not
an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.
Section 8.09
Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent and
Collateral Agent upon 10 days’ notice to the Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent and
Collateral Agent under this Agreement and the other Loan Documents, then the Borrower shall have the right, subject to the reasonable
consent of the Required Lenders (so long as no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing,
in which case the Required Lenders shall have the right), to appoint a successor which shall be a bank with an office in the United States, or
an Affiliate of any such bank with an office in the United States, whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent and Collateral Agent, and the term “Administrative Agent” shall mean such successor agent effective
upon such appointment and approval, and the former Administrative Agent’s rights, powers
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and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative
Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative
Agent by the date that is 10 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s
resignation shall nevertheless thereupon become effective (except in the case of the Collateral Agent holding collateral security on behalf of
such Secured Parties, the retiring Collateral Agent shall continue to hold such collateral security as nominee until such time as a successor
Collateral Agent is appointed), and the Lenders shall assume and perform all of the duties of the Administrative Agent and Collateral Agent
hereunder until such time, if any, as the Borrower (or the Required Lenders) appoint a successor agent as provided for above. After any
retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 8.09 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.
Section 8.10
Arrangers. Notwithstanding any other provision of this Agreement or any provision of any other Loan
Document, each of the persons named on the cover page hereof as Joint Bookrunner, or Joint Lead Arranger is named as such for recognition
purposes only, and in its capacity as such shall have no rights, duties, responsibilities or liabilities with respect to this Agreement or any other
Loan Document, except that each such person and its Affiliates shall be entitled to the rights expressly stated to be applicable to them in
Sections 9.05 and 9.17 (subject to the applicable obligations and limitations as set forth therein).
Security Documents and Collateral Agent . The Lenders and the other Secured Parties authorize the
Collateral Agent to release any Collateral or Guarantors in accordance with Section 9.18 or if approved, authorized or ratified in accordance
with Section 9.08.
Section 8.11
The Lenders and the other Secured Parties hereby irrevocably authorize and instruct the Collateral Agent to, without any
further consent of any Lender or any other Secured Party, enter into (or acknowledge and consent to) or amend, renew, extend, supplement,
restate, replace, waive or otherwise modify any First Lien/First Lien Intercreditor Agreement, any First Lien/Second Lien Intercreditor
Agreement, any other Permitted Junior Intercreditor Agreement, any other Permitted Pari Passu Intercreditor Agreement or any other
intercreditor agreement contemplated hereby with the collateral agent or other representatives of the holders of Indebtedness that is to be
secured by a Lien on the Collateral that is not prohibited (including with respect to priority) under this Agreement and to subject the Liens on
the Collateral securing the Obligations to the provisions thereof (any of the foregoing, an “Intercreditor Agreement”). The Lenders and the
other Secured Parties irrevocably agree that (x) the Collateral Agent may rely exclusively on a certificate of a Responsible Officer of the
Borrower as to whether any such other Liens are not prohibited and (y) any Intercreditor Agreement entered into by the Collateral Agent shall
be binding on the Secured Parties, and each Lender and the other Secured Parties hereby agrees that it will take no actions contrary to the
provisions of, if entered into and if applicable, any Intercreditor Agreement. The foregoing provisions are intended as an inducement to any
provider of any Indebtedness not prohibited by Section 6.01 hereof to extend credit to the Loan Parties and such persons are intended third-
party beneficiaries of such provisions. Furthermore, the Lenders and the other Secured Parties hereby authorize the Administrative Agent
and the Collateral Agent to release any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under
any Loan Document (i) to the holder of any Lien on such property that is permitted by clauses (c), (i), (j), (aa) or (mm) of Section 6.02 or
Section 6.02(a) (if the Liens thereunder are of a type that is contemplated by any of the foregoing clauses) in each case to the extent the
contract or agreement pursuant to which such Lien is granted prohibits any other Liens on such property or (ii) that is or becomes Excluded
Property; and the Administrative Agent and the Collateral Agent shall do so upon request of the Borrower; provided, that prior to any such
request, the Borrower shall have in each case delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower
certifying (x) that such Lien is permitted under this Agreement, (y) in the case of a request
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pursuant to clause (i) of this sentence, that the contract or agreement pursuant to which such Lien is granted prohibits any other Lien on such
property and (z) in the case of a request pursuant to clause (ii) of this sentence, that (A) such property is or has become Excluded Property
and (B) if such property has become Excluded Property as a result of a contractual restriction, such restriction does not violate Section
6.09(c).
Section 8.12
Right to Realize on Collateral and Enforce Guarantees. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan
Party, (i) the Administrative Agent (irrespective of whether the principal of any Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise (A) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of any or all of the Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent and any Subagents
allowed in such judicial proceeding, and (B) to collect and receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and (ii) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent under the Loan Documents. Nothing contained herein shall
be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any
plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to
authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.
Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative
Agent, the Collateral Agent and each Secured Party hereby agree that (a) no Secured Party shall have any right individually to realize upon
any of the Collateral or to enforce the Guarantee, it being understood and agreed that all powers, rights and remedies hereunder may be
exercised solely by the Administrative Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and
remedies under the Security Documents may be exercised solely by the Collateral Agent, and (b) in the event of a foreclosure by the
Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Agent or any Lender may be
the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and
representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required
Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the
purchase price for any collateral payable by the Collateral Agent at such sale or other Disposition.
Section 8.13
Withholding Tax. To the extent required by any applicable Requirement of Law, the Administrative
Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any authority of
the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for
the account of any Lender for any reason (including because the appropriate form was not delivered, was not properly executed, or because
such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of,
withholding Tax ineffective), such Lender shall indemnify the Administrative Agent (to the extent that the Administrative Agent has not
already been reimbursed by any applicable Loan Party and without limiting the obligation of any applicable Loan Party
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to do so) fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including penalties, fines,
additions to Tax and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket
expenses. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such
Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Section 8.13.
Section 8.14
Certain ERISA Matters.
(a)
Each Lender (x) represents and warrants, as of the date such person became a Lender party hereto, to,
and (y) covenants, from the date such person became a Lender party hereto to the date such person ceases being a Lender party hereto, for
the benefit of, the Administrative Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or
otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(i)
(ii)
the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class
exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption
for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions
involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank
collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is
applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments and this Agreement,
(iii)
(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager”
(within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on
behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and
this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement satisfies the requirements of subsections (b) through (g) of Part I of PTE 84-14 and (D) to the
best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this
Agreement, or
Administrative Agent, in its sole discretion, and such Lender.
(iv)
such other representation, warranty and covenant as may be agreed in writing between the
(b)
In addition, unless either (1) subclause (i) in the immediately preceding clause (a) is true with respect
to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with subclause (iv) in the
immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such person became a Lender party hereto,
to, and (y) covenants, from the date such person became a Lender party hereto to the date such person ceases being a Lender party hereto,
for the benefit of, the Administrative Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Borrower or any other Loan Party, that the Administrative Agent, the Arrangers or any of their respective Affiliates is not a
fiduciary with respect to
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the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the
Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the
Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section 1.03
Erroneous Payments.
(a)
Each Lender, each Issuing Bank, each other Secured Party and any other party hereto hereby severally agrees that if (i) the
Administrative Agent notifies (which such notice shall be conclusive absent manifest error) such Lender or Issuing Bank or any other
Secured Party (or the Lender Affiliate of a Secured Party) or any other Person that has received funds from the Administrative Agent or any
of its Affiliates, either for its own account or on behalf of a Lender, Issuing Bank or other Secured Party (each such recipient, a “Payment
Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient were
erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such
Payment Recipient) or (ii) any Payment Recipient receives any payment from the Administrative Agent (or any of its Affiliates) (x) that is in
a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the
Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, (y) that was not
preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with
respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was
transmitted or received in error or by mistake (in whole or in part) then, in each case, an error in payment shall be presumed to have been
made (any such amounts specified in clauses (i) or (ii) of this Section 8.15(a), whether received as a payment, prepayment or repayment of
principal, interest, fees, distribution or otherwise; individually and collectively, an “Erroneous Payment”), then, in each case, such Payment
Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment; provided that nothing in this
Section shall require the Administrative Agent to provide any of the notices specified in clauses (i) or (ii) above. Each Payment Recipient
agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of
set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous
Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(d)
Without limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii)
above, it shall promptly notify the Administrative Agent in writing of such occurrence.
(e)
In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the property of the
Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and
upon demand from the Administrative Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an
Erroneous Payment on its behalf to), promptly, but in all events no later than one Business Day thereafter, return to the Administrative Agent
the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency
so received, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof)
was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the Overnight Rate.
(f)
In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason,
after demand therefor by the Administrative Agent in accordance with immediately preceding clause (c), from any Lender that is a Payment
Recipient or an Affiliate of a
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Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then at the sole discretion of
the Administrative Agent and upon the Administrative Agent’s written notice to such Lender (i) such Lender shall be deemed to have made a
cashless assignment of the full face amount of the portion of its Loans (but not its Commitments) of the relevant Class with respect to which
such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the Administrative Agent or, at the option of the
Administrative Agent, the Administrative Agent’s applicable lending affiliate in an amount that is equal to the Erroneous Payment Return
Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the
Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) plus any accrued and unpaid interest on such
assigned amount, without further consent or approval of any party hereto and without any payment by the Administrative Agent or its
applicable lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment. The parties hereto acknowledge and agree
that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any payment or other consideration paid by
the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern in the event of any conflict with the terms
and conditions of Section 9.04 and (3) the Administrative Agent may reflect such assignments in the Register without further consent or
action by any other Person.
(g)
Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any
Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent (1) shall be
subrogated to all the rights of such Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all
amounts at any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable by the
Administrative Agent to such Payment Recipient from any source, against any amount due to the Administrative Agent under this Section
8.15 or under the indemnification provisions of this Agreement, (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for
the purpose of this Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations owed by
the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of
such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party, or
realized as proceeds of the Collateral and applied, for the purpose of making a payment on the Obligations and (z) to the extent that an
Erroneous Payment was in any way or at any time credited as payment or satisfaction of any of the Obligations, the Obligations or any part
thereof that were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and
effect as if such payment or satisfaction had never been received.
(h)
Each party’s obligations under this Section 8.15 shall survive the resignation or replacement of the Administrative Agent
or any transfer of right or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction
or discharge of all Obligations (or any portion thereof) under any Loan Document.
(i)
Nothing in this Section 8.15 will constitute a waiver or release of any claim of the Administrative Agent hereunder arising
from any Payment Recipient’s receipt of an Erroneous Payment.
Notwithstanding anything to the contrary herein or in any other Loan Document, for the avoidance of doubt, it is understood and
agreed that if a Loan Party has paid principal, interest, fees or any other amounts owed pursuant to a Loan Document, nothing in this Section
8.15 (or Section 9.05 (or any equivalent provision) in connection therewith)) shall require any such Loan Party to pay additional amounts
that are duplicative of such previously paid amounts.
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ARTICLE IX
Miscellaneous
Notices; Communications. (a) All notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by electronic means as
follows:
Section 9.01
the address or electronic mail address specified for such person on Schedule 9.01; and
(i)
if to any Loan Party, the Administrative Agent or the Issuing Banks as of the Closing Date to
specified in its Administrative Questionnaire.
(ii)
if to any other Lender or any other Issuing Bank, to the address or electronic mail address
(b)
Notices and other communications to the Lenders and the Issuing Banks hereunder may be delivered
or furnished by electronic communication (including e mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent. The Administrative Agent or the Borrower may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by them, provided that approval of such
procedures may be limited to particular notices or communications.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received. Notices delivered through electronic communications to the extent provided in Section 9.01(b)
above shall be effective as provided in such Section 9.01(b).
(c)
the other parties hereto.
(d)
Any party hereto may change its address for notices and other communications hereunder by notice to
(e)
Documents required to be delivered pursuant to Section 5.04 may be delivered electronically
(including as set forth in Section 9.17) and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower
posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 9.01, or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender entitled to
access thereto and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided, that the Borrower shall notify the Administrative Agent (by electronic mail) of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Except for
such certificates required by Section 5.04(c), the Administrative Agent shall have no obligation to request the delivery or to maintain copies
of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such
request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Section 9.02
Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan
Parties herein, in the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant
to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and each Issuing Bank and shall
survive the making by the Lenders of the Loans and the execution and delivery of the Loan Documents and the issuance of the Letters of
Credit, regardless of any investigation made by such persons or on their behalf, and shall continue in full force and effect until the
Termination Date. Without prejudice to the survival of
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any other agreements contained herein, indemnification and reimbursement obligations contained herein (including pursuant to Sections 2.15,
2.16, 2.17 and 9.05) shall survive the Termination Date.
Section 9.03
Binding Effect. This Agreement shall become effective when it shall have been executed by the
Borrower and the Administrative Agent and when the Administrative Agent shall have received copies hereof which, when taken together,
bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent, each Issuing Bank and each Lender and their respective permitted successors and assigns.
Section 9.04
Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of an Issuing Bank that
issues any Letter of Credit), except that (i) except as permitted by Section 6.05, the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section 9.04. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any person (other than
the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of an Issuing Bank that issues any Letter
of Credit), Participants (to the extent provided in clause (c) of this Section 9.04), and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement or the other Loan Documents.
(b)
(i) Subject to the conditions set forth in subclause (ii) below, any Lender may assign to one or more
assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or
delayed) of:
(A)
the Borrower, which consent will be deemed to have been given if the Borrower has
not responded within ten (10) Business Days after the delivery of any request for such consent; provided, that no consent of the Borrower
shall be required for (i) an assignment of a Term Loan to a Lender, an Affiliate of a Lender, an Approved Fund, or in the case of assignments
during the primary syndication of the Commitments and Loans to persons identified to and agreed by the Borrower in writing prior to the
Closing Date, (ii) an assignment of a Revolving Facility Commitment or Revolving Facility Loan to a Revolving Facility Lender, an Affiliate
of a Revolving Facility Lender or Approved Fund with respect to a Revolving Facility Lender, or (iii) in each case, if an Event of Default has
occurred and is continuing, any other person; and
Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender; and
(B)
the Administrative Agent; provided that no consent of the Administrative
required for an assignment of all or any portion of a Term Loan.
(C)
the Issuing Banks; provided, that no consent of the Issuing Banks shall be
(ii)
Assignments shall be subject to the following additional conditions:
except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans under any
Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the
date the Assignment
(A)
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and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) $1,000,000 or an
integral multiple of $1,000,000 in excess thereof in the case of Term Loans and (y) $5,000,000 or an integral multiple of $1,000,000
in excess thereof in the case of Revolving Facility Loans or Revolving Facility Commitments, unless each of the Borrower and the
Administrative Agent otherwise consent; provided, that such amounts shall be aggregated in respect of each Lender and its
Affiliates or Approved Funds (with simultaneous assignments to or by two or more Related Funds shall be treated as one
assignment), if any;
(B)
the parties to each assignment shall (1) execute and deliver to the
Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or
(2) if previously agreed with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment
and Acceptance, in each case together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the
reasonable discretion of the Administrative Agent (and which the Administrative Agent agrees to waive for all Arrangers));
Agent an Administrative Questionnaire and any tax forms required to be delivered pursuant to Section 2.17; and
(C)
the Assignee, if it shall not be a Lender, shall deliver to the Administrative
(D)
the Assignee shall not be the Borrower or any of the Borrower’s Affiliates.
For the purposes of this Section 9.04, “Approved Fund” shall mean any person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Notwithstanding the foregoing or anything to the contrary herein, no Lender shall be permitted to assign or transfer any portion of its rights
and obligations under this Agreement to (A) any Disqualified Lender, (B) any Defaulting Lender or any of its Subsidiaries, or any person
who, upon becoming a Lender hereunder, would constitute any of the foregoing persons described in this clause (B), or (C) a natural person.
Notwithstanding the foregoing, each Loan Party and the Lenders acknowledge and agree that the Administrative Agent shall not have any
responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Lender and the Administrative Agent shall
have no liability with respect to any assignment made to a Disqualified Lender. The Administrative Agent shall keep the list of Disqualified
Lenders on file and may only provide the list of Disqualified Lenders to a Lender requesting the same. Any assigning Lender shall, in
connection with any potential assignment, provide to the Borrower a copy of its request (including the name of the prospective assignee)
concurrently with its delivery of the same request to the Administrative Agent irrespective of whether or not an Event of Default under
Section 7.01(b), (c), (h) or (i) has occurred and is continuing.
(iii)
Subject to acceptance and recording thereof pursuant to subclause (v) below, from and after
the effective date specified in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.05 (subject to the limitations and requirements of those Sections)); provided, that an Assignee shall
not be entitled to receive any greater payment pursuant
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to Section 2.17 than the applicable assignor would have been entitled to receive had no such assignment occurred. Any assignment
or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (d)
of this Section 9.04 (except to the extent such participation is not permitted by such clause (d) of this Section 9.04, in which case
such assignment or transfer shall be null and void).
(iv)
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest amounts of the Loans
and Revolving L/C Exposure owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in
the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the
Lenders shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower,
the Issuing Banks and any Lender, at any reasonable time and from time to time upon reasonable prior notice; provided, that no
Lender shall, in such capacity, have access to, or be otherwise permitted to review any information in the Register other than
information with respect to such Lender.
(v)
Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an Assignee, the Assignee’s completed Administrative Questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in clause (b) of this Section 9.04, if applicable, and any written consent to
such assignment required by clause (b) of this Section 9.04 and any applicable tax forms, the Administrative Agent shall accept
such Assignment and Acceptance and promptly record the information contained therein in the Register. No assignment, whether or
not evidenced by a promissory note, shall be effective for purposes of this Agreement unless it has been recorded in the Register as
provided in this subclause (v).
(c)
[Reserved].
(d)
(i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations in Loans and Commitments to one or more banks or other entities other than (I) any Disqualified Lender (to the extent that
the list of Disqualified Lenders has been made available to all Lenders; provided, that regardless of whether the list of Disqualified Lenders
has been made available to all Lenders, no Lender may sell participations in Loans or Commitments to a Disqualified Lender without the
consent of the Borrower if the list of Disqualified Lenders has been made available to such Lender) or (II) any Defaulting Lender or any of
its Subsidiaries, or any person who, upon becoming a Lender hereunder, would constitute any of the foregoing persons described in this
clause (II) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided, that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided, that (x) such agreement
may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
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modification or waiver that both (1) requires the consent of each Lender directly affected thereby pursuant to clause (i), (ii), (iii) or (vi) of
the first proviso to Section 9.08(b) and (2) directly adversely affects such Participant (but, for the avoidance of doubt, not any waiver of any
Default or Event of Default) and (y) no other agreement with respect to amendment, modification or waiver may exist between such Lender
and such Participant. Subject to clause (d)(iii) of this Section 9.04, the Borrower agrees that each Participant shall be entitled to the benefits
of Sections 2.15, 2.16 and 2.17 (subject to the limitations and requirements of those Sections and Section 2.19) to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 9.04. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.06 as though it were a Lender; provided, that such Participant shall be subject to
Section 2.18(c) as though it were a Lender. Notwithstanding the foregoing, each Loan Party and the Lenders acknowledge and agree that
the Administrative Agent shall not have any responsibility or obligation to determine whether any Participant or potential Participant is a
Disqualified Lender and the Administrative Agent shall have no liability with respect to any participation made to a Disqualified Lender.
(ii)
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts and
interest amounts of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”). The entries in the Participant Register shall be conclusive absent manifest error, and each party hereto shall treat each
person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. Without limitation of the requirements of this Section 9.04(d), no Lender shall have any
obligation to disclose all or any portion of a Participant Register to any person (including the identity of any Participant or any
information relating to a Participant’s interest in any Commitments, Loans or other Loan Obligations under any Loan Document),
except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other Loan Obligation is in
registered form under Section 5f.103-1(c) of the Treasury Regulations for U.S. federal income tax purposes or is otherwise required
by applicable law. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(iii)
A Participant shall not be entitled to receive any greater payment under Section 2.15, 2.16 or
2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s prior written consent, which consent shall state that it is
being given pursuant to this Section 9.04(d)(iii); provided that each potential Participant shall provide such information as is
reasonably requested by the Borrower in order for the Borrower to determine whether to provide its consent.
(e)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or
other central bank and in the case of any Lender that is an Approved Fund, any pledge or assignment to any holders of obligations owed, or
securities issued, by such Lender, including to any trustee for, or any other representative of, such holders, and this Section 9.04 shall not
apply to any such pledge or assignment of a security interest; provided, that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
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Lender requiring Notes to facilitate transactions of the type described in clause (e) above.
(f)
The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any
(g)
Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have
funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent. Each of the Borrower, each
Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other person in
instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such
Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless
each other party hereto and each Loan Party for any loss, cost, damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
(h)
If the Borrower wishes to replace the Loans or Commitments under any Facility with ones having
different terms, it shall have the option, with the consent of the Administrative Agent and subject to at least three Business Days’ advance
notice to the Lenders under such Facility, instead of prepaying the Loans or reducing or terminating the Commitments to be replaced, to (i)
require the Lenders under such Facility to assign such Loans or Commitments to the Administrative Agent or its designees and (ii) amend
the terms thereof in accordance with Section 9.08 (with such replacement, if applicable, being deemed to have been made pursuant to
Section 9.08(d)). Pursuant to any such assignment, all Loans and Commitments to be replaced shall be purchased at par (allocated among
the Lenders under such Facility in the same manner as would be required if such Loans were being optionally prepaid or such
Commitments were being optionally reduced or terminated by the Borrower), accompanied by payment of any accrued interest and fees
thereon and any amounts owing pursuant to Section 9.05(b). By receiving such purchase price, the Lenders under such Facility shall
automatically be deemed to have assigned the Loans or Commitments under such Facility pursuant to the terms of the form of Assignment
and Acceptance attached hereto as Exhibit A, and accordingly no other action by such Lenders shall be required in connection therewith.
The provisions of this clause (h) are intended to facilitate the maintenance of the perfection and priority of existing security interests in the
Collateral during any such replacement.
(i)
(j)
[Reserved].
[Reserved].
(k)
In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no
such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment
shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy
in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank, any other Lender
hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in
Letters of Credit in accordance with its Revolving Facility Percentage; provided that notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without
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compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all
purposes of this Agreement until such compliance occurs.
Section 9.05
Expenses; Indemnity. (a) The Borrower agrees to pay
(i) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or the Collateral
Agent in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent or the Collateral
Agent in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or
thereof, including the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP, counsel for the Administrative Agent, the
Collateral Agent and the Arrangers and the Co-Manager, and, if necessary, the reasonable fees, charges and disbursements of one local
counsel per jurisdiction, and (ii) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the Agents, any
Issuing Bank or any Lender in connection with the enforcement of their rights in connection with this Agreement and the other Loan
Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the fees, charges and disbursements of a
single counsel for all such persons, taken as a whole, and, if necessary, a single local counsel in each appropriate jurisdiction for all such
persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where such person affected by such conflict informs
the Borrower of such conflict and thereafter retains its own counsel with the Borrower’s prior written consent (not to be unreasonably
withheld), of another firm of counsel for such affected person).
(b)
The Borrower agrees to indemnify the Administrative Agent, the Collateral Agent, the Arrangers, the
Joint Bookrunners, each Issuing Bank, each Lender, each of their respective Affiliates, successors and assignors, and each of their
respective directors, officers, employees, agents, trustees, advisors and members (each such person being called an “Indemnitee”) against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, charges and disbursements (excluding the allocated costs of in house counsel and limited to not more than one counsel for all
such Indemnitees, taken as a whole, and, if necessary, a single local counsel in each appropriate jurisdiction for all such Indemnitees, taken
as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the
Borrower of such conflict and thereafter retains its own counsel with the Borrower’s prior written consent (not to be unreasonably
withheld), of another firm of counsel for such affected Indemnitee)), incurred by or asserted against any Indemnitee arising out of, in any
way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated hereby, (ii) the use of the proceeds of the Loans or the use of
any Letter of Credit (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any violation of or liability
under Environmental Laws by the Borrower or any Subsidiary, (iv) any actual or alleged presence, Release or threatened Release of or
exposure to Hazardous Materials at, under, on, from or to any property owned, leased or operated by the Borrower or any Subsidiary or (v)
any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and
regardless of whether such matter is initiated by a third party or by the Borrower or any of their subsidiaries or Affiliates; provided, that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad
faith or willful misconduct of such Indemnitee or any of its Related Parties, (y) arose from a material breach of such Indemnitee’s or any of
its Related Parties’ obligations under any Loan Document (as determined by a court of competent jurisdiction in a final, non-appealable
judgment) or (z) arose from any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or
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omission of the Borrower or any of its Affiliates and is brought by an Indemnitee against another Indemnitee (other than any claim, actions,
suits, inquiries, litigation, investigation or proceeding against any Agent, Issuing Bank, Arranger or the Co-Manager in its capacity as such).
None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to Borrower or any of their respective
subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may
be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment
of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05
shall be payable within 15 days after written demand therefor accompanied by reasonable documentation with respect to any
reimbursement, indemnification or other amount requested.
(c)
Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be
duplicative of any amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to any Taxes (other than Taxes that represent
losses, claims, damages, liabilities and related expenses resulting from a non-Tax claim), which shall instead be governed exclusively by
Section 2.17 and, to the extent set forth therein, Section 2.15.
(d)
To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waive, any
claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby.
The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the
Collateral Agent or any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all the other Obligations and the termination of this Agreement.
(e)
Section 9.06
Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender and each
Issuing Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Lender
or such Issuing Bank to or for the credit or the account of the Borrower or any Subsidiary against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement or any other Loan Document held by such Lender or such Issuing Bank,
irrespective of whether or not such Lender or such Issuing Bank shall have made any demand under this Agreement or such other Loan
Document and although the obligations may be unmatured; provided, that in the event that any Defaulting Lender shall exercise any such
right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with
the provisions of Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed
held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised
such right of setoff. The rights of each Lender and each
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Issuing Bank under this Section 9.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender or such
Issuing Bank may have.
Section 9.07
Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY
CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED
UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (OTHER THAN AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT
COULD REQUIRE THE APPLICATION OF ANY OTHER LAW.
Section 9.08
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, any Issuing Bank or any
Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, each
Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by
the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by clause (b) below, and
then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the
Borrower or any other Loan Party in any case shall entitle such person to any other or further notice or demand in similar or other
circumstances.
(b)
Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be
waived, amended or modified except (w) as provided in Section 2.14, (x) as provided in Section 2.21, (y) in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or, (A) in respect of any waiver,
amendment or modification of Section 4.01 or Section 2.11(i) after the Closing Date, the Required Revolving Facility Lenders (including at
least two Revolving Facility Lenders that are not affiliated with each other) voting as a single Class, rather than the Required Lenders, or
(B) in respect of any waiver, amendment or modification of Section 2.11(b), the Required Prepayment Lenders, rather than the Required
Lenders), and (z) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each Loan
Party party thereto and the Administrative Agent and consented to by the Required Lenders; provided, however, that no such agreement
shall:
(i)
decrease or forgive the principal amount of, or extend the final maturity of, or decrease the
rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the applicable
Revolving Facility Maturity Date (except as provided in Section 2.05(c)), without the prior written consent of each Lender directly
adversely affected thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby
shall be the only consent required hereunder to make such modification); provided, that any amendment to the financial definitions
in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii)
increase or extend the Commitment of any Lender, or decrease the Commitment Fees, L/C
Participation Fees or any other Fees of any Lender without the prior written consent of such Lender (which, notwithstanding the
foregoing, such consent of such Lender shall be the only consent required hereunder to make such modification); provided, that
waivers or
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modifications of conditions precedent, covenants, Defaults or Events of Default, mandatory prepayments or of a mandatory
reduction in the aggregate Commitments shall not constitute an increase or extension of the Commitments of any Lender for
purposes of this clause (ii),
(iii)
extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan
Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fee is due, or
reduce the amount thereof, without the prior written consent of each Lender directly adversely affected thereby (which,
notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required
hereunder to make such modification),
(iv)
amend the provisions of Section 2.18 or Section 7.02 with respect to the pro rata application
of payments required thereby in a manner that by its terms modifies the application of such payments required thereby to be on a
less than pro rata basis, without the prior written consent of each Lender adversely affected thereby (which, notwithstanding the
foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make
such modification),
(v)
amend or modify the provisions of this Section 9.08 or the definition of the terms “Required
Lenders,” “Majority Lenders,” “Required Revolving Facility Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the prior written consent of each Lender adversely affected thereby, in each case except, for the avoidance of
doubt, as otherwise provided in Section 9.08(d) and (e) (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the Loans and Commitments are included on the Closing Date),
(vi)
release all or substantially all of the Collateral or all or substantially all of the Subsidiary Loan
Parties from their respective Guarantees under the Subsidiary Guarantee Agreement, unless, in the case of a Subsidiary Loan Party,
all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted
by this Agreement, without the prior written consent of each Lender other than a Defaulting Lender,
(vii)
effect any waiver, amendment or modification that by its terms adversely affects the rights in
respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another
Facility, without the consent of the Majority Lenders participating in the adversely affected Facility except, for the avoidance of
doubt, as otherwise provided in Section 9.08(d) and (e) (it being agreed that the Required Lenders may waive, in whole or in part,
any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment
reduction still required to be made is not changed);
provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or an
Issuing Bank hereunder without the prior written consent of the Administrative Agent or such Issuing Bank acting as such at the effective
date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section
9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any Assignee of such Lender.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have the right to approve or disapprove any amendment, waiver
or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender
may be affected with the consent
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of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or
extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require
the consent of such Defaulting Lender.
(c)
Without the consent of any Lender or Issuing Bank, the Loan Parties and the Administrative Agent
and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any
amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting,
perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for
the benefit of the Secured Parties, to include holders of Other First Liens in the benefit of the Security Documents in connection with the
incurrence of any Other First Lien Debt, or as required by local law to give effect to, or protect any security interest for the benefit of the
Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to
otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d)
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to permit additional extensions of credit to be
outstanding hereunder from time to time and the accrued interest and fees and other obligations in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest
and fees and other obligations in respect thereof and (b) to include appropriately the holders of such extensions of credit in any
determination of the requisite lenders required hereunder, including Required Lenders, Required Prepayment Lenders and the Required
Revolving Facility Lenders.
(e)
Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may
be made with the consent of the Borrower and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A)
to integrate any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments in a manner consistent with Section
2.21, including, with respect to Other Term Loans, as may be necessary to establish such Incremental Term Loan Commitments or
Revolving Facility Commitments as a separate Class or tranche from the existing Term Loan Commitments or Incremental Revolving
Facility Commitments, as applicable, and, in the case of Extended Term Loans, to reduce the amortization schedule of the related existing
Class of Term Loans proportionately, (B) to integrate any Other First Lien Debt or (C) to cure any ambiguity, omission, defect or
inconsistency.
(f)
Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as
may be necessary to ensure that all Term Loans established pursuant to Section 2.21 after the Closing Date that will be included in an
existing Class of Term Loans outstanding on such date (an “Applicable Date”), when originally made, are included in each Borrowing of
outstanding Term Loans of such Class (the “Existing Class Loans”), on a pro rata basis, and/or to ensure that, immediately after giving
effect to such new Term Loans (the “New Class Loans” and, together with the Existing Class Loans, the “Class Loans”), each Lender
holding Class Loans will be deemed to hold its Pro Rata Share of each Class Loan on the Applicable Date (but without changing the
amount of any such Lender’s Term Loans), and each such Lender shall be deemed to have effectuated such assignments as shall be required
to ensure the foregoing. The “Pro Rata Share” of any Lender on the Applicable Date is the ratio of (1) the sum of such Lender’s Existing
Class Loans immediately prior to the Applicable Date plus the amount of New Class Loans made by such Lender on the Applicable Date
over (2) the aggregate principal amount of all Class Loans on the Applicable Date.
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(g)
With respect to the incurrence of any secured or unsecured Indebtedness (including any intercreditor
agreement relating thereto), the Borrower may elect (in its discretion, but shall not be obligated) to deliver to the Administrative Agent a
certificate of a Responsible Officer at least three Business Days prior to the incurrence thereof (or such shorter time as the Administrative
Agent may agree in its reasonable discretion), together with either drafts of the material documentation relating to such Indebtedness or a
description of such Indebtedness (including a description of the Liens intended to secure the same or the subordination provisions thereof,
as applicable) in reasonably sufficient detail to be able to make the determinations referred to in this paragraph, which certificate shall
either, at the Borrower’s election, (x) state that the Borrower has determined in good faith that such Indebtedness satisfies the requirements
of the applicable provisions of Sections 6.01 and 6.02 (taking into account any other applicable provisions of this Section 9.08), in which
case such certificate shall be conclusive evidence thereof, or (y) request the Administrative Agent to confirm, based on the information set
forth in such certificate and any other information reasonably requested by the Administrative Agent, that such Indebtedness satisfies such
requirements, in which case the Administrative Agent may determine whether, in its reasonable judgment, such requirements have been
satisfied (in which case it shall deliver to the Borrower a written confirmation of the same), with any such determination of the
Administrative Agent to be conclusive evidence thereof, and the Lenders hereby authorize the Administrative Agent to make such
determinations.
Notwithstanding the foregoing, this Agreement may be amended, waived or otherwise modified with
the written consent of the Required Revolving Facility Lenders, the Administrative Agent and the Borrower with respect to the provisions
of Section 4.01 or Section 2.11(i), solely as they relate to the Revolving Facility Loans and Letters of Credit.
(h)
Revolving Facility Lender, the Administrative Agent and the Borrower to the extent necessary to integrate any Alternate Currency.
(i)
Notwithstanding the foregoing, this Agreement may be amended, with the written consent of each
Section 9.09
Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the applicable
interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “Charges”), as provided for
herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any
Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges
payable to such Lender or such Issuing Bank, shall be limited to the Maximum Rate; provided, that such excess amount shall be paid to such
Lender or such Issuing Bank on subsequent payment dates to the extent not exceeding the legal limitation.
Section 9.10
Entire Agreement. This Agreement, the other Loan Documents and the agreements regarding certain
Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among
or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other
Loan Documents. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan
Documents.
Section 9.11
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
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THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
Section 9.12
Severability. In the event any one or more of the provisions contained in this Agreement or in any
other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Section 9.13
Counterparts; Electronic Execution of Assignments and Certain Other Documents. This Agreement
and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to
this Agreement (each a “Communication”), including Communications required to be in writing, may be in the form of an Electronic Record
and may be executed using Electronic Signatures. Each of the Loan Parties agrees that any Electronic Signature on or associated with any
Communication shall be valid and binding on each of the Loan Parties to the same extent as a manual, original signature, and that any
Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of each of the Loan Parties
enforceable against such in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered.
Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts,
but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may
include, without limitation, use or acceptance by the Administrative Agent and each of the Secured Parties of a manually signed paper
Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed
Communication converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Secured
Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”),
which shall be deemed created in the ordinary course of the such person’s business, and destroy the original paper document. All
Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall
have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the
Administrative Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the
Administrative Agent pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the
Administrative Agent has agreed to accept such Electronic Signature, the Administrative Agent and each of the Secured Parties shall be
entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party without further verification and (b)
upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by such manually executed
counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by
15 USC §7006, as it may be amended from time to time.
Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this
Agreement.
Section 9.14
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Section 9.15
Jurisdiction; Consent to Service of Process. (a) The Borrower and each other Loan Party irrevocably
and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity,
whether in contract or in tort or otherwise, against the Administrative Agent, the Collateral Agent, any Lender, or any Affiliate of the
foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other
than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of
such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York
State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment
in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that the Administrative
Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or any other Loan Party or its properties in the courts of any jurisdiction.
(b)
Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
Each party to this Agreement irrevocably consents to service of process in the manner provided for
notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement or any other Loan Document to serve
process in any other manner permitted by law.
(c)
Section 9.16
Confidentiality. Each of the Lenders, each Issuing Bank and each of the Agents agrees that it shall
maintain in confidence any information relating to the Borrower and any Subsidiary furnished to it by or on behalf of the Borrower or any
Subsidiary (other than information that (a) has become generally available to the public other than as a result of a disclosure by such party, (b)
has been independently developed by such Lender, such Issuing Bank or such Agent without violating this Section 9.16 or (c) was available
to such Lender, such Issuing Bank or such Agent from a third party having, to such person’s knowledge, no obligations of confidentiality to
the Borrower or any other Loan Party) and shall not reveal the same other than to its directors, trustees, officers, employees and advisors with
a need to know and any numbering, administration or settlement service providers or to any person that approves or administers the Loans on
behalf of such Lender (so long as each such person shall have been instructed to keep the same confidential in accordance with this Section
9.16), except: (A) to the extent necessary to comply with law or any legal process or the requirements of any Governmental Authority, the
National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of
the disclosing party are listed or traded, (B) as part of normal reporting or review procedures to, or examinations by, Governmental
Authorities or self-regulatory authorities, including the National Association of Insurance Commissioners or the Financial Industry
Regulatory Authority, Inc., (C) to its parent companies, Affiliates or auditors (so long as each such person shall have been instructed to keep
the same confidential in accordance with this Section 9.16), (D) in order to enforce its rights under any Loan Document in a legal proceeding,
(E) to any pledgee under Section 9.04(d) or any other prospective assignee of, or prospective Participant in, any of its rights under this
Agreement (so long as such person shall have been instructed to keep the same confidential in accordance with this Section 9.16) and (F) to
any direct or indirect contractual counterparty in Hedging Agreements or such contractual counterparty’s professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
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counterparty agrees to be bound by the provisions of this Section 9.16); provided that, in the case of clauses (E) and (F), no information may
be provided to any Disqualified Lender or person who is known to be acting for a Disqualified Lender. In addition, the Administrative
Agent, the Lenders, and any of their respective Related Parties, may (A) disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent or
the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments, in each case, to the
extent the Administrative Agent, such Lender or such Related Party advises such parties of the confidential nature of such information and
such parties to agree to keep such information confidential pursuant to a confidentiality or similar agreement; and (B) in consultation with the
Borrower, use any information (not constituting information subject to the foregoing confidentiality restrictions) related to the syndication
and arrangement of the credit facilities contemplated by this Agreement in connection with marketing, press releases, or other transactional
announcements or updates provided to investor or trade publications, including the placement of “tombstone” advertisements in publications
of its choice, describing the names of the Borrower and its Affiliates (or any of them), and the type, size and Closing Date, all at the expense
of the Administrative Agent, such Lender or such Related Party; provided that, without the prior written consent of the Borrower, such
advertisements may not disclose any information other than the existence of this Agreement, the size and type of the credit facilities, the
parties to the Loan Documents and the Closing Date (but not the use of proceeds of the Loans made hereunder).
Section 9.17
Platform; Borrower Materials. The Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”), and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-
public information (or, if the Borrower is not at the time a public reporting company, material information of a type that would not reasonably
be expected to be publicly available if the Borrower was a public reporting company) with respect to the Borrower or its Subsidiaries or any
of their respective securities) (each, a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Arrangers, the Co-Manager, the Issuing Banks and the Lenders to treat such Borrower Materials as solely containing information
that is either (A) publicly available information or (B) not material (although it may be sensitive and proprietary) with respect to the
Borrower or its Subsidiaries or any of their respective securities for purposes of United States Federal and state securities laws (provided,
however, that such Borrower Materials shall be treated as set forth in Section 9.16, to the extent such Borrower Materials constitute
information subject to the terms thereof), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Section 9.18
Release of Liens and Guarantees.
(a)
The Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably agree that the Liens
granted to the Collateral Agent by the Loan Parties on any Collateral shall be automatically released: (i) in full upon the occurrence of the
Termination Date as set forth in Section 9.18(d) below; (ii) upon the Disposition of such Collateral by any Loan Party to a person that is not
(and is not required to become) a Loan Party in a transaction not prohibited by this Agreement (and the
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Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without
further inquiry), (iii) to the extent that such Collateral comprises property leased to a Loan Party, upon termination or expiration of such
lease (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable
request without further inquiry), (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or
such other percentage of the Lenders whose consent may be required in accordance with Section 9.08), (v) to the extent that the property
constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee in
accordance with the Subsidiary Guarantee Agreement or clause (b) below (and the Collateral Agent may rely conclusively on a certificate to
that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (vi) as provided in Section 8.11 (and the
Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without
further inquiry), and (vii) as required by the Collateral Agent to effect any Disposition of Collateral in connection with any exercise of
remedies of the Collateral Agent pursuant to the Security Documents. Any such release (other than pursuant to clause (i) above) shall not in
any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those
being released) of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any Disposition, all of
which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the
Loan Documents.
(b)
In addition, the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably agree that
the Guarantors shall be automatically released from the Guarantees upon consummation of any transaction not prohibited hereunder
resulting in such Subsidiary ceasing to exist or constitute a Subsidiary Loan Party or otherwise becoming an Excluded Subsidiary (and the
Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without
further inquiry); provided that any Guarantor that ceases to constitute a Subsidiary Loan Party or becomes an Excluded Subsidiary solely by
virtue of no longer being a Wholly Owned Subsidiary (a “Partially Disposed Subsidiary”) shall only be released from its Guarantee to the
extent that (x) the other person taking an equity interest in such Partially Disposed Subsidiary is not an Affiliate of the Borrower and (y) at
the time of such release, the Borrower would have been permitted to make an Investment in such Partially Disposed Subsidiary, and is
deemed to have made a new Investment in such Partially Disposed Subsidiary for purposes of Section 6.04 (as if such Person were then
newly acquired) in an amount equal to the portion of the fair market value (as determined by the Borrower in good faith) of the net assets of
such Partially Disposed Subsidiary attributable to the Borrower’s equity interests therein.
(c)
The Lenders, the Issuing Banks and the other Secured Parties hereby authorize the Administrative
Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary or desirable to
evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this Section 9.18 and to return to the
Borrower all possessory collateral (including share certificates (if any)) held by it in respect of any Collateral so released, all without the
further consent or joinder of any Lender or any other Secured Party. Any representation, warranty or covenant contained in any Loan
Document relating to any such Collateral or Guarantor shall no longer be deemed to be made. In connection with any release hereunder, the
Administrative Agent and the Collateral Agent shall promptly (and the Secured Parties hereby authorize the Administrative Agent and the
Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Borrower and at the
Borrower’s expense in connection with the release of any Liens created by any Loan Document in respect of such Subsidiary, property or
asset; provided, that the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower containing such
certifications as the Administrative Agent shall reasonably request and any such release shall be without recourse to or warranty by the
Administrative Agent or Collateral Agent.
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(d)
Notwithstanding anything to the contrary contained herein or any other Loan Document, on the
Termination Date, all Liens granted to the Collateral Agent by the Loan Parties on any Collateral and all obligations of the Borrower and the
other Loan Parties under any Loan Documents (other than such obligations that expressly survive the Termination Date pursuant to the
terms hereof) shall, in each case, be automatically released and, upon reasonable request of the Borrower, the Administrative Agent and/or
the Collateral Agent, as applicable, shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required
to evidence the release its security interest in all Collateral (including returning to the Borrower all possessory collateral (including all share
certificates (if any)) held by it in respect of any Collateral), and to evidence the release of all obligations under any Loan Document (other
than such obligations that expressly survive the Termination Date pursuant to the terms hereof), whether or not on the date of such release
there may be any (i) obligations in respect of any Secured Hedge Agreements or any Secured Cash Management Agreements and (ii) any
contingent indemnification obligations or expense reimburse claims not then due; provided, that the Administrative Agent shall have
received a certificate of a Responsible Officer of the Borrower containing such certifications as the Administrative Agent shall reasonably
request. Any such release of obligations shall be deemed subject to the provision that such obligations shall be reinstated if after such
release any portion of any payment in respect of the obligations guaranteed thereby shall be rescinded, avoided, or must otherwise be
restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon
or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor
or any substantial part of its property, or otherwise, all as though such payment had not been made. The Borrower agrees to pay all
reasonable and documented out-of-pocket expenses incurred by the Administrative Agent or the Collateral Agent (and their respective
representatives) in connection with taking such actions to release security interest in all Collateral and all obligations under the Loan
Documents as contemplated by this Section 9.18(d).
(e)
Obligations of the Borrower or any of its Subsidiaries under any Secured Cash Management
Agreement or Secured Hedge Agreement (after giving effect to all netting arrangements relating to such Secured Hedge Agreements) shall
be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so
secured and guaranteed. No person shall have any voting rights under any Loan Document solely as a result of the existence of obligations
owed to it under any such Secured Hedge Agreement or Secured Cash Management Agreement. For the avoidance of doubt, no release of
Collateral or Guarantors effected in the manner permitted by this Agreement shall require the consent of any holder of obligations under
Secured Hedge Agreements or any Secured Cash Management Agreements.
(f)
In connection with any release pursuant to this Section 9.18, (i) the Collateral Agent may conclusively
rely on a certificate of an officer of the Borrower as to whether any termination or release is permitted and (ii) each Secured Party (other
than the Collateral Agent) hereby agrees to deliver any instruction or direction as necessary or as may be reasonably requested by the
Collateral Agent pursuant to this Agreement or any other Loan Document.
Section 9.19
Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a
sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligation of the Borrower in respect of any such sum due from it to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the
“Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the
171
Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due to the Administrative Agent from the Borrower in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the person to whom such obligation
was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the Borrower (or to any other
person who may be entitled thereto under applicable law).
Section 9.20
USA PATRIOT Act Notice. Each Lender that is subject to the USA PATRIOT Act and the Beneficial
Ownership Regulation and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to
the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the USA PATRIOT Act and the
Beneficial Ownership Regulation.
Section 9.21
[Reserved].
Section 9.22
Agency of the Borrower for the Loan Parties. Each of the other Loan Parties hereby appoints the
Borrower as its agent for all purposes relevant to this Agreement and the other Loan Documents, including the giving and receipt of notices
and the execution and delivery of all documents, instruments and certificates contemplated herein and therein and all modifications hereto
and thereto.
Section 9.23
No Liability of the Issuing Banks. The Borrower assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit. Neither any Issuing Bank nor any of its
officers or directors shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon,
even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that the Borrower shall have a claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered by the Borrower that the Borrower proves were caused by (i)
such Issuing Bank’s willful misconduct or gross negligence as determined in a final, non-appealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii) such
Issuing Bank’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly
complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank may
accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary.
Section 9.24
Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Solely to the extent any
Lender or Issuing Bank that is an Affected Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in
any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that
any
172
liability of any Lender or Issuing Bank that is an Affected Financial Institution arising under any Loan Document, to the extent such liability
is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and
acknowledges and agrees to be bound by:
the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to
any such liabilities arising hereunder which may be payable to it by any Lender or Issuing Bank that is an Affected Financial Institution;
and
(a)
(b)
the effects of any Bail-In Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership
in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred
on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such
liability under this Agreement or any other Loan Document; or
and conversion powers of the applicable Resolution Authority.
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down
Section 9.25
Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide
support, through a guarantee or otherwise, for any Swap Obligation or any other agreement or instrument that is a QFC (such support, “QFC
Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power
of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and
Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such
Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported
QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United
States):
(a)
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit
Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing
such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be
effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation
and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC
Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered
Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution
Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.
Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender
shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b)
As used in this Section 9.25, the following terms have the following meanings:
173
U.S.C. 1841(k)) of such party.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
47.2 or 382.1, as applicable.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
12 U.S.C. 5390(c)(8)(D).
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with,
[Signature Pages Follow]
174
Exhibit A-D
Exhibit D - Form of Borrowing Request
FORM OF BORROWING REQUEST
Date: ________________, __________
To: Wells Fargo Bank, N.A., as administrative agent (in such capacity, the “ Administrative Agent”) under that certain Credit Agreement
dated as of June 12, 2020 (as amended by Amendment No. 1 to Credit Agreement, dated as of December 17, 2020 and Amendment
No. 2 to Credit Agreement, dated as of November 22, 2022, and as further amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among Cerence Inc., a Delaware corporation (the
“Borrower”), the Lenders from time to time party thereto and the Administrative Agent.
Ladies and Gentlemen:
Reference is made to the above-described Credit Agreement. Terms defined in the Credit Agreement, wherever used
herein, unless otherwise defined herein, shall have the same meanings herein as are prescribed by the Credit Agreement. The undersigned
hereby irrevocably notifies you, pursuant to Section 2.03 of the Credit Agreement, of the Borrowing specified below:
1. The Borrowing will be a Borrowing of _________ Loans.
2. The aggregate amount of the proposed Borrowing is: $_________.
3. The Business Day of the proposed Borrowing is: _____________.
4. The Borrowing is comprised of $___________ of ABR Loans and $____________ of SOFR Loans.
5. The duration of the initial Interest Period for the SOFR Loans, if any, included in the Borrowing shall be ___________month(s).
6.
7. The location and number of the account to which the proceeds of such Borrowing are to be disbursed is _________________.
[The currency in which the Revolving Facility Borrowing is to be denominated is: _____________.]
the proposed Borrowing, before and after giving effect thereto and to the application of the proceeds thereof:
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of
(A) [The representations and warranties set forth in the Loan Documents are true and correct in all material respects as of
the date hereof, with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects as of such
earlier date); and
(B) No Event of Default or Default has occurred and is continuing.]
[Remainder of page intentionally left blank; signature page follows]
above.
This Borrowing Request is issued pursuant to and is subject to the Credit Agreement, executed as of the date first written
CERENCE INC.
By:
Name:
Title:
Subsidiary Name
Cerence AI LLC
Cerence Operating Company
Consolidated Mobile Corporation
VoiceBox Technologies LLC
AMS Solutions Corporation
Multi-Corp International Ltd.
Cerence BVBA
Cerence Acquisition ULC
Cerence Holding Inc.
Cerence Technologies Inc.
Zi Corporation
Zi Corporation of Canada, Inc.
845162 Alberta Ltd.
Cerence Communications Technology (Shanghai) Co. Ltd.
Cerence Software Technology (Beijing) Co. Ltd.
Huayu Zi Software Technology (Beijing) Co, Ltd.
USA Shenyu Technologies (Shenzhen) Co., Ltd.
Cerence Deutschland GmbH
Cerence GmbH
VoiceBox Technologies Deutschland GmbH
Asia Translations & Telecommunications Ltd.
Cerence Hong Kong Limited
Huayu Zi Software Technology Ltd.
Telecom Technology Corporation Limited
Zi Corporation (H.K.) Ltd.
Zi Corporation of Hong Kong Ltd.
Cerence Services (India) LLP
Cerence Services Ireland Limited
Cerence S.r.l.
Cerence Japan K.K.
Cerence B.V.
Cerence Holding B.V.
Cerence Service B.V.
VoiceBox Technologies Europe B.V.
Cerence Operations S.L.
Cerence Ltd.
Cerence AB
Cerence Switzerland AG
Cerence Taiwan Ltd.
Cerence Limited
SUBSIDIARIES OF CERENCE INC.
Exhibit 21.1
Jurisdiction
Delaware
Delaware
Delaware
Delaware
Massachusetts
Barbados
Belgium
Canada
Canada
Canada
Canada
Canada
Canada
China
China
China
China
Germany
Germany
Germany
Hong Kong SAR
Hong Kong SAR
Hong Kong SAR
Hong Kong SAR
Hong Kong SAR
Hong Kong SAR
India
Ireland
Italy
Japan
Netherlands
Netherlands
Netherlands
Netherlands
Spain
South Korea
Sweden
Switzerland
Taiwan
United Kingdom
Type
Domestic
Domestic
Domestic
Domestic
Domestic
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
International
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
Cerence Inc.
Burlington, Massachusetts
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (No. 333-234040, No. 333-254398, and No.
333-262572) of Cerence Inc. of our reports dated November 29, 2022, relating to the consolidated financial statements, and the effectiveness of Cerence
Inc.’s internal control over financial reporting, which appear in this Annual Report on Form 10-K.
/s/ BDO USA, LLP
Boston, Massachusetts
November 29, 2022
Exhibit 31.1
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Stefan Ortmanns, certify that:
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of Cerence Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the fiscal years covered by
this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the fiscal years presented in this report;
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-
15(f)) for the registrant and have:
(a)
(b)
(c)
(d)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent
fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)
(b)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: November 29, 2022
By:
/s/ Stefan Ortmanns
Stefan Ortmanns
Chief Executive Officer
(Principal Executive Officer)
Exhibit 31.2
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Thomas L. Beaudoin, certify that:
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of Cerence Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the fiscal years covered by
this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the fiscal years presented in this report;
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-
15(f)) for the registrant and have:
(a)
(b)
(c)
(d)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent
fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)
(b)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: November 29, 2022
By:
/s/ Thomas L. Beaudoin
Thomas L. Beaudoin
Chief Financial Officer
(Principal Financial Officer)
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with the Annual Report of Cerence Inc. (the “Company”) on Form 10-K for the fiscal year ending September 30, 2022 as filed with
the Securities and Exchange Commission on the date hereof (the “Report”), I certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002, that:
(1)
(2)
The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the
Company.
Date: November 29, 2022
By:
/s/ Stefan Ortmanns
Stefan Ortmanns
Chief Executive Officer
(Principal Executive Officer)
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.2
In connection with the Annual Report of Cerence Inc. (the “Company”) on Form 10-K for the fiscal year ending September 30, 2022 as filed with
the Securities and Exchange Commission on the date hereof (the “Report”), I certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002, that:
(1)
(2)
The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the
Company.
Date: November 29, 2022
By:
/s/ Thomas L. Beaudoin
Thomas L. Beaudoin
Chief Financial Officer
(Principal Financial Officer)