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0001529274☐☐☐☐☐00015292742025-02-272025-02-27


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

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

Date of Report (Date of earliest event reported): February 27, 2025

ALKAMI TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware     001-40321     45-3060776
(State or Other Jurisdiction of Incorporation) (Commission File Number)     (IRS Employer Identification No.)

5601 Granite Parkway, Suite 120, Plano, TX 75024
(Address of Principal Executive Offices) (Zip Code)
(877) 725-5264
Registrant’s Telephone Number, Including Area Code

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

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

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

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

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

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

Title of each class Trading Symbol(s) Name of each exchange on which registered
Common Stock, $0.001 par value per share ALKT
The Nasdaq Stock Market LLC

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

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















Item 1.01. Entry into a Material Definitive Agreement.

Acquisition of MANTL

On February 27, 2025, Alkami Technology, Inc. (the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) to acquire Fin Technologies, Inc. dba MANTL, a Delaware corporation (“MANTL”), through a merger (the “Merger”) of MCW MergerSub, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“MergerSub”), with and into MANTL, with MANTL surviving the Merger as a wholly owned subsidiary of the Company. MANTL provides onboarding and account opening solutions that allow financial institutions to acquire commercial, business and retail customers through a variety of channels for many deposit account types.

Pursuant to the terms of the Merger Agreement, the Company has agreed to acquire MANTL for an enterprise value of $400 million, on a debt free, cash free basis and subject to customary purchase price adjustments, expected to be $7 million. Alkami plans to fund the acquisition with cash of approximately $380 million and restricted stock units issued to continuing MANTL employees with an estimated value of $13 million at transaction closing in replacement for unvested compensatory stock options. The purchase price is subject to certain adjustments at closing based on, among other things, MANTL’s net working capital amount and other customary adjustments at closing. In addition, a portion of the purchase price will be placed into escrow to secure certain obligations of MANTL and its equityholders under the Merger Agreement.

The completion of the Merger remains subject to the satisfaction or waiver (to the extent permitted by applicable law) of certain customary closing conditions, including, among other things, the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, the accuracy of the other party’s representations and warranties (subject to certain materiality qualifiers) in the Merger Agreement as of the date of the Merger Agreement and as of the Closing Date (as defined in the Merger Agreement), and the other party’s compliance with its covenants and agreements in the Merger Agreement in all material respects.

Each of the Company, MergerSub and MANTL made customary representations and warranties and agreed to customary covenants in the Merger Agreement. The assertions embodied in those representations and warranties were made solely for purposes of the Merger Agreement among the parties and may be subject to important qualifications and limitations agreed to by the parties in connection with the negotiated terms. Moreover, some of those representations and warranties (i) may not be accurate or complete as of any specified date, (ii) may be subject to a contractual standard of materiality different from those generally applicable to stockholders or (iii) may have been used for purposes of allocating risk among the parties rather than establishing matters as facts. Accordingly, the Merger Agreement is included with this filing only to provide investors with information regarding the terms of the Merger Agreement, and not to provide investors with any factual information regarding the Company, MANTL or their respective businesses. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, MANTL or any of their respective subsidiaries or affiliates. Information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.

The Merger Agreement contains customary covenants and termination rights. The Company’s obligations under the Merger Agreement are not subject to a financing contingency. The Company is evaluating various financing options to meet the net cash requirements of the acquisition, which may include utilizing cash and marketable securities, drawing on its credit facility, or leveraging its universal shelf registration to issue equity securities, equity-linked securities, or debt instruments.

The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed herewith as Exhibit 2.1 and is incorporated herein by reference.

Credit Facility Amendment

On February 27, 2025, the Company entered into a Third Amendment (the “Amendment”) to the Company’s Amended and Restated Credit Agreement dated as of April 29, 2022 (as amended the “Credit Agreement”), with Silicon Valley Bank, a division of First-Citizens Bank & Trust Company, as Administrative Agent, and the other lenders party thereto.

The Amendment, among other things, (i) extends the maturity date of the revolving commitment from April 29, 2027 to February 27, 2030, (ii) increases the amount of the revolving loan commitment by $100 million, for a total revolving commitment of $225 million, (iii) extends the Financial Covenant Trigger Date to December 31, 2026 or such earlier date as designated by the Company, (iv) reduces the applicable interest rate margins (1) prior to the Financial Covenant Trigger Date, from SOFR plus 3.00% to 3.50% per annum to SOFR plus 2.75% to 3.25% per annum, based on the recurring revenue leverage ratio and (2) on or after the Financial Covenant Trigger Date, from SOFR plus 1.50% to 3.00% per annum to SOFR plus 1.25% to 2.50% per annum, based on the total net leverage ratio, (v) permits the acquisition of MANTL pursuant to the terms of the Merger Agreement, (vi) permits certain Permitted Convertible Indebtedness and Permitted Equity Derivative Transactions (as such terms are defined in the Credit Agreement, as amended by the Amendment), subject to certain restrictions, and (vii) modifies certain covenants.

Except as amended by the Amendment, the remaining terms of the Credit Agreement remain in full force and effect. The material terms of the Credit Agreement are described in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on May 2, 2022, as amended by those certain First and Second Amendments to the Company’s Amended and Restated Credit Agreement dated as of June 27, 2023 and July 1, 2024, respectively (and described in the Company’s Current Reports on Form 8-K filed with the SEC on June 28, 2023 and on Form 8-K/A filed with the SEC on July 3, 2024, respectively).

The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed herewith as Exhibit 10.1, and is incorporated herein by reference.




Item 2.02. Results of Operations and Financial Condition.

On February 27, 2025, the Company issued a press release announcing its financial results for the quarter and year ending December 31, 2024. A copy of the press release is furnished herewith as Exhibit 99.1 and is incorporated by reference herein.

The information set forth in this Item 2.02, including Exhibit 99.1, is being furnished and shall not be deemed “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section. The information in this Item 2.02, including Exhibit 99.1, shall not be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.

Item 7.01. Regulation FD Disclosure.

On February 27, 2025, the Company posted an investor presentation to its website at www.alkami.com (the “Investor Presentation”). A copy of the Investor Presentation is furnished herewith as Exhibit 99.2 and is incorporated herein by reference.

The information set forth in this Item 7.01, including Exhibit 99.2, is being furnished and shall not be deemed “filed” for purposes of the Exchange Act, or otherwise subject to the liabilities of that Section. The information in this Item 7.01, including Exhibit 99.2, shall not be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing. By furnishing the information contained in the Investor Presentation, the Company makes no admission as to the materiality of any information in the Investor Presentation that is required to be disclosed solely by reason of Regulation FD.

Item 8.01. Other Events.

On February 27, 2025, the Company and MANTL issued a joint press release announcing the execution of the Merger Agreement. A copy of the press release is being filed herewith as Exhibit 99.3 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.
Exhibit Number Description
104 Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
*Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish supplementally copies of omitted schedules and exhibits to the Securities and Exchange Commission or its staff upon its request.




SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Alkami Technology, Inc.
Date: February 27, 2025 By: /s/ W. Bryan Hill
W. Bryan Hill
Chief Financial Officer

EX-2.1 2 mantlexecutedagreement-f.htm EX-2.1 mantlexecutedagreement-f
Execution Version US-DOCS\157178066.13 AGREEMENT AND PLAN OF MERGER BY AND AMONG ALKAMI TECHNOLOGY, INC., MCW MERGERSUB, INC., FIN TECHNOLOGIES, INC. AND SHAREHOLDER REPRESENTATIVE SERVICES LLC FEBRUARY 27, 2025


 
TABLE OF CONTENTS Page i US-DOCS\157178066.13 ARTICLE 1 DEFINITIONS AND CONSTRUCTION ........................................................................ 2 Section 1.1 Definitions ........................................................................................................ 2 Section 1.2 Additional Defined Terms .............................................................................. 17 Section 1.3 Construction ................................................................................................... 19 ARTICLE 2 MERGER ........................................................................................................................ 20 Section 2.1 Closing ............................................................................................................ 20 Section 2.2 Merger ............................................................................................................ 20 Section 2.3 Effect of Merger Generally ............................................................................ 21 Section 2.4 Governing Documents .................................................................................... 21 Section 2.5 Directors and Officers .................................................................................... 21 Section 2.6 Conversion of Shares ...................................................................................... 21 Section 2.7 Exchange of Certificates and Book-Entry Shares .......................................... 22 Section 2.8 Options ........................................................................................................... 23 Section 2.9 Warrants ......................................................................................................... 25 Section 2.10 Dissenting Shares ........................................................................................... 26 Section 2.11 Pre-Closing Deliveries.................................................................................... 26 Section 2.12 Closing Deliveries; Actions at Closing .......................................................... 27 Section 2.13 Payments ........................................................................................................ 29 Section 2.14 Post-Closing Adjustment ................................................................................ 30 Section 2.15 Withholding .................................................................................................... 33 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF COMPANY .................................... 33 Section 3.1 Organization and Good Standing ................................................................... 34 Section 3.2 Authority and Enforceability .......................................................................... 34 Section 3.3 No Conflict; Consents .................................................................................... 34 Section 3.4 Capitalization and Subsidiaries ...................................................................... 35 Section 3.5 Financial Statements ....................................................................................... 36 Section 3.6 No Undisclosed Liabilities ............................................................................. 37 Section 3.7 Absence of Certain Changes and Events ........................................................ 37 Section 3.8 Tangible Personal Property ............................................................................ 37 Section 3.9 Real Property .................................................................................................. 37 Section 3.10 Intellectual Property ....................................................................................... 38 Section 3.11 Contracts ......................................................................................................... 41 Section 3.12 Governmental Authorizations ........................................................................ 44 Section 3.13 Compliance with Laws ................................................................................... 44 Section 3.14 Tax Matters ..................................................................................................... 44 Section 3.15 Employee Benefit Matters .............................................................................. 47 Section 3.16 Employment and Labor Matters ..................................................................... 49 Section 3.17 Environmental Matters ................................................................................... 49 Section 3.18 Data Security and Privacy .............................................................................. 50 Section 3.19 Compliance with Anti-Bribery and Corrupt Practice Laws ........................... 52 Section 3.20 Legal Proceedings .......................................................................................... 53 Section 3.21 Affiliate Transactions ..................................................................................... 53


 
TABLE OF CONTENTS (continued) Page -ii- US-DOCS\157178066.13 Section 3.22 Customers and Suppliers ................................................................................ 53 Section 3.23 Insurance ........................................................................................................ 54 Section 3.24 Banks; Power of Attorney .............................................................................. 54 Section 3.25 Brokers Fees ................................................................................................... 54 Section 3.26 Cares Act ........................................................................................................ 55 Section 3.27 Warranty Obligations. .................................................................................... 55 Section 3.28 Restrictions on Business Activities ................................................................ 55 Section 3.29 Books and Records ......................................................................................... 55 Section 3.30 Disclaimer of Other Representations and Warranties .................................... 55 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGERSUB ....................................................................................................... 56 Section 4.1 Organization and Good Standing ................................................................... 56 Section 4.2 Authority and Enforceability .......................................................................... 56 Section 4.3 No Conflict ..................................................................................................... 56 Section 4.4 Legal Proceedings .......................................................................................... 57 Section 4.5 Investment Intent ............................................................................................ 57 Section 4.6 Brokers Fees ................................................................................................... 57 Section 4.7 Solvency ......................................................................................................... 57 Section 4.8 Independent Investigation .............................................................................. 58 Section 4.9 Disclaimer of Other Representations and Warranties .................................... 58 ARTICLE 5 COVENANTS ................................................................................................................ 58 Section 5.1 Access and Investigation ................................................................................ 58 Section 5.2 Operation of the Businesses of the Company ................................................. 59 Section 5.3 No Negotiation ............................................................................................... 61 Section 5.4 Consents and Filings....................................................................................... 62 Section 5.5 Confidentiality ................................................................................................ 64 Section 5.6 Public Announcements ................................................................................... 65 Section 5.7 Indemnification and Insurance ....................................................................... 65 Section 5.8 Employee Matters ........................................................................................... 66 Section 5.9 R&W Policy ................................................................................................... 67 Section 5.10 Section 280G Vote ......................................................................................... 67 Section 5.11 Financing Covenants ...................................................................................... 68 Section 5.12 Further Actions ............................................................................................... 70 ARTICLE 6 CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE .................................... 71 Section 6.1 Conditions to the Obligation of Purchaser and MergerSub ............................ 71 Section 6.2 Conditions to the Obligation of the Company ................................................ 72 ARTICLE 7 TERMINATION ............................................................................................................. 72 Section 7.1 Termination Events ........................................................................................ 72


 
TABLE OF CONTENTS (continued) Page -iii- US-DOCS\157178066.13 Section 7.2 Effect of Termination ..................................................................................... 73 ARTICLE 8 INDEMNIFICATION ..................................................................................................... 75 Section 8.1 Survival .......................................................................................................... 75 Section 8.2 Indemnification by the Company Securityholders ......................................... 76 Section 8.3 Indemnification by Purchaser ......................................................................... 76 Section 8.4 Scope of Liability ........................................................................................... 77 Section 8.5 Notices ............................................................................................................ 78 Section 8.6 Defense of Actions ......................................................................................... 79 Section 8.7 Calculation of Losses ..................................................................................... 80 Section 8.8 Effect of Investigation .................................................................................... 81 Section 8.9 Release of Escrow Amounts ........................................................................... 81 Section 8.10 Exclusivity of Remedies ................................................................................. 81 ARTICLE 9 TAX MATTERS ............................................................................................................. 82 Section 9.1 Proration of Straddle Period Taxes ................................................................. 82 Section 9.2 Cooperation .................................................................................................... 82 Section 9.4 Straddle Period Returns .................................................................................. 83 Section 9.5 Transaction Deductions .................................................................................. 83 Section 9.6 Transfer Taxes ................................................................................................ 83 Section 9.7 Tax Contests ................................................................................................... 83 Section 9.8 Tax Sharing Agreements ................................................................................ 84 ARTICLE 10 COMPANY REPRESENTATIVE ............................................................................... 85 Section 10.1 Authority ........................................................................................................ 85 Section 10.2 Authority ........................................................................................................ 86 Section 10.3 Binding Decisions; Rights .............................................................................. 86 Section 10.4 Resignation ..................................................................................................... 86 Section 10.5 Exculpation; Indemnification. ........................................................................ 86 Section 10.6 Expense Fund ................................................................................................. 87 ARTICLE 11 GENERAL PROVISIONS ............................................................................................ 87 Section 11.1 Notices ............................................................................................................ 87 Section 11.2 Amendment .................................................................................................... 88 Section 11.3 Waiver and Remedies ..................................................................................... 89 Section 11.4 Entire Agreement ............................................................................................ 89 Section 11.5 Assignment ..................................................................................................... 89 Section 11.6 Severability ..................................................................................................... 89 Section 11.7 Exhibits and Schedules ................................................................................... 89 Section 11.8 Interpretation .................................................................................................. 90 Section 11.9 Expenses ......................................................................................................... 90 Section 11.10 Governing Law ............................................................................................... 90


 
TABLE OF CONTENTS (continued) Page -iv- US-DOCS\157178066.13 Section 11.11 Specific Performance ...................................................................................... 90 Section 11.12 Jurisdiction and Service of Process ................................................................ 91 Section 11.13 Waiver of Jury Trial ....................................................................................... 92 Section 11.14 Counterparts ................................................................................................... 92 Section 11.15 Third Parties ................................................................................................... 92


 
-v- US-DOCS\157178066.13 Exhibits Exhibit A Accounting Principles and Closing Net Working Capital Exhibit B Form of Escrow Agreement Exhibit C Form of Letter of Transmittal Exhibit D Form of Optionholder Letter Exhibit E Form of Post-Signing Consent Schedules Schedule A Supporting Stockholders Schedule 2.12(a)(viii) Terminated Agreements Appendices Appendix A State Sales Tax and Local Tax Matters Appendix B Unvested Equity Matters


 
US-DOCS\157178066.13 AGREEMENT AND PLAN OF MERGER This Agreement and Plan of Merger (this “Agreement”) is made and entered into as of February 27, 2025, by and among Alkami Technology, Inc., a Delaware corporation (“Purchaser”), MCW MergerSub, Inc., a Delaware corporation (“MergerSub”), Fin Technologies, Inc., a Delaware corporation (the “Company”), and Shareholder Representative Services LLC, a Colorado limited liability company, as representative of the Company Securityholders (solely in such capacity, the “Company Representative”). RECITALS WHEREAS, subject to the terms and conditions set forth herein, Purchaser desires to acquire all of the Company’s outstanding capital stock for cash through a reverse subsidiary merger of MergerSub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Purchaser; WHEREAS, the respective boards of directors of Purchaser, MergerSub and the Company have approved this Agreement and deem it advisable and in the best interests of their respective equity holders to merge MergerSub with and into the Company in accordance with this Agreement and the DGCL; WHEREAS, the respective boards of directors of MergerSub and the Company have recommended that their respective equity holders adopt this Agreement and have directed that this Agreement be submitted to their respective equity holders entitled to vote thereon for adoption; WHEREAS, as contemplated by Section 3.2 of that certain Amended and Restated Voting Agreement, dated as of March 16, 2021, by and among the Company and the Company Stockholders identified therein (the “Voting Agreement”), (a) the holders of at least a majority of the shares of Common Stock then issued or issuable upon conversion of shares of Preferred Stock, (b) all of the Key Holders and (c) all of the members of the board of directors of the Company have or are expected to execute, one or more written consents approving, and, to the extent required pursuant to Section 5.4(c), specifying that Section 3 of the Voting Agreement shall apply to, this Agreement and the transactions contemplated herein; WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Purchaser’s and MergerSub’s willingness to enter into this Agreement, certain Company Stockholders set forth on Schedule A (the “Supporting Stockholders”) are entering into a support agreement with Purchaser and the Company (the “Support Agreement”) pursuant to which each such individual has agreed, among other things, to (a) vote all of their shares of Company Stock in favor of the adoption of this Agreement and (b) take certain other actions in furtherance of this Agreement and the transactions contemplated herein, in each case, on the terms and subject to the conditions provided for in the Support Agreement; and WHEREAS, it is anticipated that, immediately after the execution and delivery of this Agreement, (a) Purchaser, as the sole stockholder of MergerSub, will approve and adopt this Agreement and the Merger, in accordance with the DGCL, and (b) the Company Stockholders set forth in Section 5.4(c)(1), (2) and (3) will execute and deliver the Post-Signing Consent to approve and adopt this Agreement, the Merger and the other transactions contemplated by this Agreement in accordance


 
2 US-DOCS\157178066.13 with the DGCL, which the Company will deliver to Purchaser as promptly as practicable, and in any event within two (2) hours, after the execution of this Agreement. NOW, THEREFORE, intending to be legally bound and in consideration of the mutual provisions set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE 1 DEFINITIONS AND CONSTRUCTION Section 1.1 Definitions. For the purposes of this Agreement and the Ancillary Agreements: “Accounting Principles” means the accounting principles, practices, policies, procedures, judgments, assumptions and calculation methodologies set forth in Exhibit A. “Adjustment Time” means 11:59 p.m. Eastern time on the day prior to the Closing Date. “Affiliate” means, with respect to a specified Person, a Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, the specified Person. For purposes of this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. “Aggregate In-the-Money Option Exercise Price” means the aggregate exercise price that would be paid to the Company in respect of all Vested In-the-Money Options outstanding and unexercised as of immediately prior to the Effective Time (assuming concurrent payment in full of the exercise price of each such Vested In-the-Money Option solely in cash). “Aggregate Warrant Exercise Price” means the aggregate exercise price that would be paid to the Company in respect of all Warrants outstanding and unexercised as of immediately prior to the Effective Time (assuming concurrent payment in full of the exercise price of each such Warrant solely in cash). “Ancillary Agreements” means, collectively, the Escrow Agreement, the Release Agreements, the Restrictive Covenant Agreements, the Support Agreement, and the other documents and agreements executed in connection herewith. “Antitrust Authority” means any of the Antitrust Division of the United States Department of Justice, the United States Federal Trade Commission or the antitrust or competition Law authorities of any other jurisdiction (whether United States, foreign or multinational). “Benefit Plan” means any “employee benefit plan” (as defined in Section 3(3) of ERISA) and all other plans, programs, agreements, Contracts or arrangements involving direct or indirect compensation, including insurance coverage, health, welfare and life insurance benefits, retirement benefits, profit sharing, severance benefits, salary continuation, transition services, change-in-control, vacation or paid time off, employment agreements (other than offer letters and/or employment agreements for “at will” employment that do not contain severance or other termination-related payments or penalties), deferred compensation, bonuses, stock options, stock purchase, phantom stock,


 
3 US-DOCS\157178066.13 stock appreciation or other forms of incentive compensation or post-retirement compensation sponsored or maintained for the benefit of any current or former director, officer or employee of the Company (in such capacity) or for which the Company has any obligation or Liability, other than governmental plans, programs, policies, or any such plan, program or policy mandated by applicable Law. “Book-Entry Shares” means shares of Company Stock as set forth in the Company’s stock ledger, other than shares of Company Stock which are certificated. “Business Day” means any day other than Saturday, Sunday or any day on which banking institutions in New York, New York are closed either under applicable Law or action of any Governmental Authority. “CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act, as amended from time to time, and the regulations promulgated thereunder. “Cash Adjustment Amount” means the amount (which may be positive or negative) of (a) the Closing Cash minus (b) the Deferred Cash Amount, as subject to adjustment pursuant to Section 2.14. “Certificate of Merger” means the certificate of merger complying with the requirements of the DGCL submitted to the Secretary of State of Delaware on the Closing Date in accordance with Section 2.2. “Certificates” means the outstanding certificates which immediately prior to the Effective Time represent shares of Company Stock. “Chicago PPLT Tax Escrow Amount” means an amount equal to $1,000,000. “Closing Cash” means, as of the Adjustment Time and without duplication, the aggregate amount of all cash and cash equivalents of the Company (including short term deposits, marketable securities and all deposited but uncleared checks, but excluding restricted cash, all outstanding checks, cash posted by counterparties and the amount of any cash deposits, cash in reserve accounts, cash escrow accounts, custodial cash and cash otherwise subject to any legal or contractual restriction on the ability to freely transfer), as subject to adjustment pursuant to Section 2.14. “Closing Indebtedness” means all Indebtedness of the Company as of the Adjustment Time, as finally determined pursuant to Section 2.14. “Closing Net Working Capital” means Net Working Capital as of the Adjustment Time, as finally determined pursuant to Section 2.14. “Code” means the U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, and any reference to any particular Code Section shall be interpreted to include any revision of or successor to that Section regardless of how numbered or classified. “Common Stock” means the (a) common stock, $.00001 par value per share, of the Company and (b) Founders Preferred Stock (as defined in the Company Certificate of Incorporation); provided, that, for avoidance of doubt, any shares of RSU Eligible Restricted Company Stock shall not constitute shares of Common Stock for any purpose hereunder.


 
4 US-DOCS\157178066.13 “Common Stock Per Share Merger Consideration” means, with respect to each share of Common Stock outstanding as of immediately prior to the Effective Time, an amount equal to the Per Share Closing Payment. “Company Certificate of Incorporation” means the Fifth Amended and Restated Certificate of Incorporation of the Company. “Company Equity Securities” means the Preferred Stock, the Common Stock, the Options and the Warrants. “Company Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Organization and Good Standing), Section 3.2 (Authority and Enforceability), Section 3.4(a) through (c) and the first and last sentence of Section 3.4(d), (Capitalization and Subsidiaries), Section 3.14 (Tax Matters) and Section 3.25 (Brokers Fees). “Company Information” means any information, in any form, maintained, owned or controlled by or on behalf of the Company. “Company Intellectual Property” means any and all Intellectual Property used or held for use by the Company in the conduct of the business of the Company as now conducted. “Company Owned IP” means any and all Intellectual Property that is owned or purported to be owned (in each case whether owned singularly or jointly with a third party or parties) by the Company. “Company Plan” means any Benefit Plan sponsored or maintained by the Company. “Company Products” means all products (including Software) and services (including Software as a service) of the Company developed (including products and services currently under development), including any plugins, libraries and APIs, that have been manufactured, deployed, made commercially available, marketed, distributed, provided, hosted, supported, sold, offered for sale, imported or exported for resale, or licensed out by or on behalf of the Company since its inception. “Company Registered IP” means any and all Company Owned IP that is registered, filed or issued with or by any Governmental Authority or domain name registrar, or any applications for any of the foregoing. “Company Securityholders” means holders of Company Equity Securities as of the applicable time of determination (but, in any event, prior to the Effective Time). “Company Stock” means collectively the Common Stock and the Preferred Stock. “Company Stockholders” means each Person who holds Company Stock immediately prior to the Effective Time. “Company Stock Per Share Merger Consideration” means: (a) with respect to each share of Preferred Stock, the Preferred Stock Per Share Merger Consideration; and (b) with respect to each share of Common Stock, the Common Stock Per Share Merger Consideration. “Company Value” means $400,000,000.


 
5 US-DOCS\157178066.13 “Company Warrantholders” means each Person who holds Warrants immediately prior to the Effective Time. “Confidentiality Agreement” means that certain Mutual Non-Disclosure Agreement, dated as of August 23, 2019, by and between Purchaser and the Company. “Contract” means any contract, agreement, arrangement, lease, sub-lease, license, sub-license, commitment, understanding, purchase order, joint venture agreement, partnership agreement, franchise, warranty, guaranty, mortgage, note, bond or other instrument or consensual obligation of any kind, written or oral (including any amendments and other modifications thereto), that is legally binding. “Current Assets” means, without duplication, the current assets of the Company as of the Adjustment Time (i) calculated in accordance with the Accounting Principles, and (ii) including only those line items that are included as current assets in the example calculation of Net Working Capital on Exhibit A; provided, that, for avoidance of doubt, Current Assets shall exclude Closing Cash, as finally determined in accordance with Section 2.14. “Current Liabilities” means, without duplication, the current liabilities of the Company as of the Adjustment Time (i) calculated in accordance with the Accounting Principles, and (ii) including only those line items that are included as current liabilities in the example calculation of Net Working Capital on Exhibit A; provided, that, for avoidance of doubt, Current Liabilities shall exclude any liabilities reflected in the Deferred Cash Amount, Closing Indebtedness or Transaction Expenses, as finally determined in accordance with Section 2.14. “Data Protection Commitments” means all representations, statements, obligations or commitments that the Company has made or entered into with respect to the collection, use, disclosure, sale, licensing, transfer, security, storage, retention, disposal or other processing of Company Information or the security, integrity or availability of Information Systems, including all relevant (i) policies, notices, statements or similar disclosures published or otherwise made publicly available by the Company; (ii) internal policies, procedures or standards of the Company; and (iii) Contracts to which the Company is a party as related to the privacy, security, or processing of Company Information. “Data Protection Laws” means all applicable Laws relating in any way to (i) the privacy, confidentiality, protection or security of Personal Information or to security, integrity or availability of Information Systems, or (ii) collection, use, disclosure, sale, licensing, transfer, security, storage, retention, disposal or other processing of Company Information, including any and all applicable Laws regulating data protection, financial privacy, health information privacy, e-commerce, third-party transfers, cross-border transfers, website or online service operators, biometric identifiers or biometric data, consumer reports, data breach notification, cybersecurity, information security safeguards, secure disposal of records, use of online cookies or other tracking mechanisms, or the transmission of marketing or commercial messages through any means, including, via email, text message or any other means. Data Protection Laws also include applicable industry standards that are legally binding on the Company, relating in any way to the privacy, security or processing of Personal Information or security, integrity or availability of Information Systems, such as the Payment Card Industry (“PCI”) Data Security Standard and any other applicable security standards, requirements, or assessment procedures published by PCI Security Standards Council in connection with a PCI Security Standards Council program.


 
6 US-DOCS\157178066.13 “Data Room” means the electronic documentation site located at www.dealroom.net under the project name “Macaw” in connection with the transactions contemplated by this Agreement. “Deferred Cash Amount” means, without duplication, the aggregate amount, as of the Adjustment Time, of (a) with respect to any customer of the Company that is not yet live, an amount equal to the product of (i) the sum of paid implementation fees for each such customer, multiplied by (ii) the percentage of the implementation time remaining based upon the Company’s projected go-live date for each such customer, and (b) with respect to all customers of the Company, an amount equal to the paid subscription fees for each such customer with respect to any services to be provided more than thirty (30) days after the Closing Date, as subject to adjustment pursuant to Section 2.14. “DGCL” means the Delaware General Corporation Law, as amended. “Employee Option” means each Vested In-the-Money Option issued and outstanding as of immediately prior to the Effective Time that was granted to the holder thereof in such holder’s capacity as, or that had vesting tied to such holder’s performance of services as, an employee of the Company. “Employee Optionholder Aggregate Merger Consideration” means the aggregate amount of cash attributable to all Optionholder Closing Payments to be made at the Closing in respect of Employee Options pursuant to Section 2.8 (taken together). “Encumbrance” means any charge, mortgage, pledge, security interest, community property interest, hypothecation, lien (statutory or otherwise), claim, Judgment, easement, encroachment, right of way, option, right of first refusal or first offer, or other encumbrance, lien or restriction of any kind or nature whatsoever, whether or consensual or non-consensual and whether arising by Contract, under Law or otherwise. “Environmental Laws” means all Laws, all contractual obligations and all common law concerning public health and safety, worker health and safety, or pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of, or exposure to, any Hazardous Materials, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation, and all those relating to food safety, fire safety, public health, noise, odors, mold or food contamination, as previously, now or hereafter in effect. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder. “ERISA Affiliate” means any Person, trade or business (whether or not incorporated) which, together with the Company, would be or was at any time treated as a single employer under Section 414 of the Code or Section 4001 of ERISA. “Escrow Agent” means JPMorgan Chase Bank, N.A. “Escrow Agreement” means the escrow agreement, substantially in the form attached hereto as Exhibit B, to be entered into on the Closing Date among Purchaser, the Company Representative and the Escrow Agent.


 
7 US-DOCS\157178066.13 “Expense Invoice” means an invoice or other document evidencing the amount of the applicable Transaction Expense. “Fraud” means actual, knowing and intentional fraud under Delaware common law committed by a Person with respect to the making of the express representations and warranties set forth in (a) with respect to the Company, Article III of this Agreement or the Company Closing Certificate, or (b) with respect to Purchaser or MergerSub, Article IV of this Agreement or the Purchaser Closing Certificate; provided, that, for the avoidance of doubt, “Fraud” shall not include constructive fraud, equitable fraud, promissory fraud, negligent misrepresentation or omission or any form of fraud or other torts premised on recklessness or negligence. “Fully Diluted Outstanding Shares” means, as of the applicable time of determination, (a) the aggregate number of issued and outstanding shares of Common Stock, plus (b) with respect to the aggregate number of shares of Preferred Stock issued and outstanding as of such time, the aggregate number of Preferred Share Common Equivalents, plus (c) the aggregate number of shares of Common Stock issuable upon exercise in full of all Vested In-the-Money Options outstanding as of such time, plus (d) the aggregate number of shares of Common Stock issuable upon exercise in full of all outstanding Warrants as of such time. “GAAP” means United States generally accepted accounting principles as in effect at the relevant time, consistently applied. “Governing Documents” means, when used with respect to an entity, the documents governing the formation, operation and governance of such entity, including (a) in the instance of a corporation, the articles or certificate of incorporation or formation and regulations or bylaws of such corporation, (b) in the instance of a limited liability company, the articles of organization or the certificate of formation and the operating agreement or limited liability company agreement of such limited liability company, (c) in the instance of a partnership, the partnership agreement of such partnership, and (d) in the instance of a limited partnership, the certificate of formation and the limited partnership agreement of such limited partnership. “Governmental Authority” means any (a) nation, region, state, county, city, town, village, district or other jurisdiction, (b) federal, state, local, municipal, foreign or other government, (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, commission, board or other entity and any court or other tribunal), (d) multinational organization exercising judicial, legislative or regulatory power or (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature of any federal, state, local, municipal, foreign or other government (including, for avoidance of doubt, any Antitrust Authority). “Governmental Authorization” means any approval, consent, ratification, waiver, license, permit, registration, exemption, certificate, order, franchise or other authorization issued or granted by any Governmental Authority. “Hazardous Materials” means any waste, pollutant, contaminant or substance regulated or defined as hazardous or toxic by or under any Environmental Law. “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.


 
8 US-DOCS\157178066.13 “In-the-Money Option” means any Option (or portion thereof) that is outstanding as of immediately prior to the Effective Time and which has a per share exercise price that is less than the Per Share Closing Payment. “Income Tax” means any Tax imposed or determined with reference to net income or profits. “Indebtedness” means, with respect to the Company, as of the Adjustment Time, without duplication, any (a) indebtedness, payment obligations or liabilities for borrowed money, (b) amounts owing as deferred purchase price for the acquisition of a business, property, goods or services (including all seller notes and “earn-out” payments), except for trade accounts payable arising in the ordinary course of business (and are not more than ninety (90) days past due), (c) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security, (d) obligations under any interest rate, currency or other hedging or similar agreement, (e) obligations under any performance or payment bond, surety bond, banker’s acceptance or related reimbursement agreement, letter of credit or similar instrument, but, in each case, only to the extent drawn or called prior to the Adjustment Time, (f) obligations under capital leases required in accordance with GAAP to be recorded as finance leases, (g) indebtedness for borrowed money of any Person secured by any Encumbrance on any of the assets of the Company, (h) all liabilities relating to severance payments with respect to terminations of employment that occur prior to the Adjustment Time, deferred compensation or commission and all bonuses that have been earned or accrued with respect to periods prior to the Adjustment Time and the employer’s share of any employment, payroll, social security or other Taxes with respect thereto, (i) any stimulus packages, government assistance or other benefits received (such as, but not limited to, loans, benefits, rights, tax credits or amounts) pursuant to the CARES Act or any other Law that are subject to a repayment obligation (absolute or contingent), (j) all unpaid Pre-Closing Income Taxes, (k) payment obligations of the Company under any settlement agreements entered into prior to the Closing, (l) guarantees with respect to any indebtedness of any other Person of a type described in clauses (a) through (k) above for which the Company is liable, and (m) for clauses (a) through (l) above, all accrued interest thereon, if any, and any termination fees, prepayment penalties, “breakage” costs or similar payments associated with the repayments of such Indebtedness on the Closing Date to the extent not paid on the Closing Date. For the avoidance of doubt, Indebtedness shall not include (i) any Liability included in the final determination of Closing Net Working Capital or Transaction Expenses pursuant to Section 2.14, (ii) any Indebtedness incurred at the written direction of Purchaser or any of its Affiliates on the Closing Date in connection with the consummation of the transactions contemplated by this Agreement, or (iii) any deferred revenue of the Company. “Indemnity Escrow Amount” means an amount in cash equal to $1,000,000. “Information Security Incident” means any (a) accidental, unauthorized or unlawful access to or loss, alteration, destruction, use, disclosure or acquisition of Company Information or (b) compromise to the security, integrity or availability of Information Systems. “Information Systems” means any computers, networks, software, systems or technology services, that are owned, licensed or controlled by the Company and used in connection with the operation of the Company’s business. “Infringement” or “Infringe” means that (or an assertion that) a given item or activity directly or indirectly infringes, misappropriates, dilutes, or constitutes unauthorized use of, or otherwise violates the Intellectual Property of, any Person.


 
9 US-DOCS\157178066.13 “Inside Date” means May 31, 2025. “Intellectual Property” means any and all worldwide rights in, arising from or associated with the following, whether protected, created or arising under the laws of the United States or any other jurisdiction or under any international convention: (a) all patents and applications therefore and all reissues, divisions, reexaminations, renewals, extensions, provisionals, substitutions, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including invention disclosures (“Patents”); (b) all trade secrets and other proprietary information which derives independent economic value from not being generally known to the public (collectively, “Trade Secrets”); (c) all copyrights, copyrights registrations and applications therefor; (d) all uniform resource locators, e-mail and other internet addresses and domain names and applications and registrations therefor; (e) all trade names, corporate names, logos, slogans, trade dress, trademarks, service marks, and trademark and service mark registrations and applications therefor and all goodwill associated therewith (“Trademarks”); (f) rights of publicity; (g) Software; and (h) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world. “IRS” means the United States Internal Revenue Service and, to the extent relevant, the United States Department of Treasury. “Judgment” means any order, writ, injunction, judgment, decree, ruling, decision, verdict, settlement, subpoena, assessment, award or arbitration award of any Governmental Authority or arbitrator. “Key Holders” means Nathaniel Harley and Benjamin Conant. “Knowledge” means, with respect to Company, the actual knowledge of any of Nathaniel Harley, Benjamin Conant, Meghan Ryan and Joel Tashijan, and the knowledge that each such Person would have reasonably obtained after due inquiry with respect to the particular matter in question. “Law” means any federal, state, local, municipal, foreign, international, multinational, or other constitution, law, statute, treaty, rule, writ, principle of common law, regulation, ordinance, code or administrative requirement, directive or interpretation. “Liability” means any liability, obligation, guarantee, commitment or debt of any kind, whether known or unknown, absolute or contingent, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, known or unknown or due or to become due, in each case, whenever and however arising. “Loss” means any Liabilities, losses, damages, Judgments, fines, penalties, obligations, Taxes, interest, Proceedings, assessments, costs, fees or expenses (including reasonable and documented out- of-pocket attorney or other professional costs, fees and expenses, including the costs of investigation, defense and enforcement), but excluding punitive damages and exemplary damages (except to the extent such punitive damages or exemplary damages are payable to a third party pursuant to a Third Party Claim). “Material Adverse Effect” means any event, change, development, state of facts, circumstance, effect or other matter that has, or would reasonably be expected to have, a material adverse effect on (a) the business, financial condition, assets, liabilities or results of operations of the Company, taken as a whole, or (b) the ability of the Company to timely consummate the transactions contemplated hereby and by the Ancillary Agreements to be entered into in connection with this Agreement;


 
10 US-DOCS\157178066.13 provided, however, that, in the cause of clause (a), none of the following events, changes, developments, states of facts, circumstances, effects or other matters, either alone or in combination, will constitute, or be considered in determining whether there has been, a Material Adverse Effect: (i) any outbreak or escalation of war or major hostilities, sabotage, civil unrest, riots, military actions or any act of terrorism or, in each case, any escalation or worsening of the foregoing, (ii) any epidemics, disease outbreaks, pandemics or other public health emergencies, or, in each case, any escalation or worsening of the foregoing, (iii) any changes in Laws, GAAP or enforcement or interpretation thereof, (iv) any changes that generally affect the industries or markets in which the Company operates, (v) any changes in financial, credit or banking markets, general economic conditions (including prevailing interest rates, exchange rates, commodity prices and fuel costs) or political conditions, (vi) hurricanes, earthquakes, floods, tsunamis, tornadoes, mudslides, wild fires or other natural disasters or any other act of God or comparable force majeure events, (vii) any action taken or failed to be taken pursuant to or in accordance with this Agreement or at the request of, or consented to by, Purchaser, (viii) any failure of the Company to meet its internal projections (it being understood that the underlying cause of such failure may be taken into account for purposes of determining whether a Material Adverse Effect has occurred to the extent not otherwise excluded by this definition), or (ix) any change, development or effect resulting from the execution, delivery, public announcement or performance of this Agreement, the transactions contemplated hereby, or the identity of Purchaser or its Affiliates, or the pendency of the transactions contemplated hereby, including, in each case of this clause (ix), the impact thereof on the relationships, contractual or otherwise, of the Company with customers, suppliers, lenders, lessors, employees, Governmental Authorities, or any other Person (provided, that the exceptions set forth in this clause (ix) shall not apply to any breach of or inaccuracy in any representation or warranty set forth in this Agreement to the extent such representation or warranty expressly addresses the consequences of the execution, delivery, public announcement or performance of this Agreement or the Merger); unless and except to the extent, in the case of the foregoing clauses (i) through (vi), such event, change, development, state of facts, circumstance, effect or other matter adversely affects the Company in a disproportionate manner relative to other Persons that operate in the same or similar lines of business as the Company (in which case such event, change, development, state of facts, circumstance, effect or other matter will be taken into account in determining whether there has been a Material Adverse Effect to the extent of such disproportionate adverse effect). “Merger Consideration” shall mean an amount equal to: (a) the Company Value, minus (b) the Closing Indebtedness, minus (c) the amount, if any, by which the Closing Net Working Capital is less than the Target Net Working Capital, minus (d) any Transaction Expenses not paid prior to the Closing plus (e) the Aggregate In-the-Money Option Exercise Price, plus (f) the Aggregate Warrant Exercise Price, minus (g) the Price Adjustment Escrow Amount, minus (h) the Indemnity Escrow Amount, minus (i) the Sales Tax Escrow Amount, minus (j) the Specific Indemnity Amount, minus (k) the Expense Fund and plus (l) the Cash Adjustment Amount. “Net Working Capital” means Current Assets minus Current Liabilities, an example calculation of which is set forth on Exhibit A, assuming solely for illustrative purposes, that 11:59 p.m. Eastern time on January 31, 2025, was the Adjustment Time. “Non-Employee Option” means each Vested In-the-Money Option issued and outstanding as of immediately prior to the Effective Time that is not an Employee Option. “Non-Employee Option Payment Fund” means the aggregate amount of cash attributable to all Optionholder Closing Payments to be made at the Closing in respect of Non-Employee Options.


 
11 US-DOCS\157178066.13 “Open Source Software” means any Software that is licensed, distributed or conveyed as “open source software,” “free software,” “copyleft” or under a similar licensing or distribution model, or under a contract or agreement that requires as a condition of its use, modification or distribution that it, or other Software into which such Software is incorporated, integrated or with which such Software is combined or distributed or that is derived from or linked to such Software, be disclosed or distributed in source code form, delivered at no charge or be licensed, distributed or conveyed under the same terms as such Contract (including Software licensed under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero General Public License (AGPL), Mozilla Public License (MPL), BSD licenses, Microsoft Shared Source License, Common Public License, Artistic License, Netscape Public License, Sun Community Source License (SCSL), Sun Industry Standards License (SISL), MIT License, Apache License and any license listed at www.opensource.org). “Option Agreements” means the option agreements evidencing the Options issued pursuant to the Option Plan and entered into by and between the Company and certain current and former employees or other service providers of the Company. “Optionholder Closing Payment” means, with respect to each Vested In-the-Money Option that has been converted into the right to receive a cash payment pursuant to Section 2.8, an amount in cash equal to the product of (a) the excess, if any, of the Per Share Closing Payment over the per share exercise price of such Option, multiplied by (b) the aggregate number of shares of Common Stock issuable upon the exercise of such Option in full. “Option Plan” means the Company’s 2016 Stock Incentive Plan. “Options” means the options to acquire or purchase shares of Common Stock granted pursuant to the Option Agreements outstanding immediately prior to the Effective Time. “Payment Fund” means an aggregate amount equal to the sum of (w) the product of (i) the Common Stock Per Share Merger Consideration multiplied by (ii) the aggregate number of shares of Common Stock issued and outstanding as of immediately prior to the Closing, plus (x) the product of (i) the Preferred Stock Per Share Merger Consideration, multiplied by (ii) the aggregate number of shares of Preferred Stock issued and outstanding as of immediately prior to the Closing, plus (y) the aggregate amount of all Warrantholder Closing Payments to be made pursuant to Section 2.9 and plus (z) the aggregate amount of the Non-Employee Option Payment Fund; provided, that the Payment Fund shall be reduced by the aggregate amount of the Company Stock Per Share Merger Consideration that would otherwise be payable to any Dissenting Shares. “PEO” means a professional employer organization, co-employer organization, human resources or benefits outsourcing entity, or similar vendor or provider. “PEO Benefit Plan” means any Benefit Plan that is sponsored or maintained by a PEO (or to which a PEO is a party) under which a current or former employee of the Company (in such capacity) is eligible to receive benefits in connection with the applicable engagement of such PEO. “Permitted Encumbrance” means any of the following: (a) carrier’s, warehousemen’s, mechanic’s, materialmen’s and other similar liens arising or incurred in the ordinary course of business for amounts that are not yet due and payable or that are being contested in good faith and with respect to which adequate reserves are being maintained in accordance with GAAP, (b) liens for Taxes that


 
12 US-DOCS\157178066.13 are not yet due and payable or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP, (c) restrictions on the transferability of securities arising under applicable securities Laws, (d) restrictions arising under applicable zoning and other land use Laws that do not, individually or in the aggregate, materially impair the present use or occupancy of the property subject thereto, (e) easements, rights of way, restrictions, covenants, claims or similar items relating to real property that appear in any title insurance policy held by the Company and that do not, individually or in the aggregate, materially impair the value or present use or occupancy of the real property subject thereto, (f) purchase money liens and liens securing rental payments under capital lease arrangements for amounts that are not yet delinquent, (g) non-exclusive licenses or rights to use Intellectual Property granted in the ordinary course of business, or (h) solely for purposes of Section 5.2, any other liens, imperfections in title, charges, easements, rights of way, restrictions, defects and exceptions that do not, and would not reasonably be expected to, individually or in the aggregate, impair the value or present use of the property to which they relate beyond a de minimis amount. “Per Share Closing Payment” means an amount in cash equal to (x) the difference of (i) the Estimated Merger Consideration, minus (ii) the Unvested Equity Amount divided by (y) the Fully Diluted Outstanding Shares. “Person” means an individual or an entity, including a corporation, limited liability company, general or limited partnership, trust, association or other business or investment entity, or any Governmental Authority. “Personal Information” means any Company Information relating to an identified or identifiable natural person, including any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household. “Post-Closing Distribution” means any cash to be paid to Company Securityholders pursuant to this Agreement following the Closing, including any distribution pursuant to Section 2.14, Section 8.9 or Section 9.10 and any distribution in respect of the Expense Fund (excluding, for the avoidance of doubt, any payments to be made at the Closing). “Post-Closing Distribution Procedures” means, with respect to any applicable Post-Closing Distribution being paid to the Company Securityholders, the following payments: (a) to the Paying Agent (on behalf of the Company Securityholders holding Common Stock, Preferred Stock or Warrants), by wire transfer of immediately available funds, in accordance with such Company Securityholders’ respective Pro Rata Percentages (or portion thereof attributable to such Common Stock, Preferred Stock or Warrants, as applicable), and (b) to each holder of Vested In-the-Money Options, by wire transfer of immediately available funds, such Option holder’s Pro Rata Percentage (or portion thereof attributable to such Vested In-the-Money Options) of such Post-Closing Distribution, which shall be promptly paid (or caused to be paid) by Purchaser to such holder of Options; provided, that in the case of payments to employees or former employees of the Company for which employment Tax withholding is required, such amounts shall be paid through the Surviving Company’s (or its Affiliate’s) payroll processing service or system. “Pre-Closing Income Taxes” means all accrued but unpaid Income Taxes imposed on the Company or any of its assets or operations for a Pre-Closing Tax Period and for the portion of any Straddle Period ending on the Closing Date (determined in accordance with Section 9.1) that are due


 
13 US-DOCS\157178066.13 and payable following the Closing Date with respect to Tax Returns of the Company that have an original due date (including applicable extensions) on or after the Closing Date and with respect to only those jurisdictions in which the Company has previously filed Tax Returns for Income Taxes and any jurisdictions in which the Company has commenced operations since the end of the prior taxable period with respect to such Tax Return, calculated (a) by taking into account any estimated or overpaid Tax payments, (b) by taking into account any Transaction Tax Deductions, (c) in accordance with accounting methods and past practices (including Tax reporting positions and elections) of the Company, and (d) by excluding any liabilities, accruals or reserves for contingent Income Taxes or with respect to uncertain Income Tax positions and any deferred tax assets or liabilities that reflect timing differences between book and tax income. “Post-Closing Tax Period” means any taxable period that begins after the Closing Date, including the portion of any Straddle Period beginning after the Closing Date. “Pre-Closing Tax Period” means any taxable period that ends on or before the Closing Date, including the portion of any Straddle Period ending on (and including) the Closing Date. “Preferred Share Common Equivalent” means, with respect to each share of Preferred Stock issued and outstanding as of immediately prior to the Effective Time, the aggregate number of shares of Common Stock such share of Preferred Stock would be convertible into as of immediately prior to the Effective Time in accordance with the Company Certificate of Incorporation. “Preferred Stock” means, collectively, the Series Seed Preferred Stock, the Series A-1 Preferred Stock, the Series A-2 Preferred Stock, the Series A-3 Preferred Stock, the Series A-4 Preferred Stock and the Series B Preferred Stock, in each case, as defined in the Company Certificate of Incorporation. “Preferred Stock Per Share Merger Consideration” means an amount per share of Preferred Stock outstanding as of immediately prior to the Effective Time in cash equal to (a) the Preferred Share Common Equivalent applicable to such share of Preferred Stock, multiplied by (b) the Per Share Closing Payment. “Price Adjustment Escrow Amount” means an amount equal to $3,000,000. “Proceeding” means any action, arbitration, audit, examination, investigation, hearing, claim, complaint, demand, litigation, suit or other legal proceeding (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, and whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator. “Pro Rata Percentage” means, with respect to each holder of Company Equity Securities, as set forth on the Securityholder Payment Schedule, the quotient, expressed as a percentage, of (a) the sum of (i) the aggregate number of shares of Common Stock held by such holder as of immediately prior to the Effective Time, plus (ii) the aggregate number of Preferred Share Common Equivalents with respect to all shares of Preferred Stock held by such holder as of immediately prior to the Effective Time, plus (iii) the aggregate number of shares of Common Stock underlying any Vested In-the-Money Options held by such holder of Company Equity Securities that are exercisable as of immediately prior to the Effective Time, plus (iv) the number of shares of Common Stock underlying any Warrants that


 
14 US-DOCS\157178066.13 are exercisable held by such holder as of immediately prior to the Effective Time, divided by (b) the Fully Diluted Outstanding Shares as of immediately prior to the Effective Time. “Purchaser Covered Party” means Purchaser and any of its Affiliates (including the Surviving Company from and after the Closing), and any of their respective equity holders, directors, managers, officers, employees, agents or representatives. “Purchaser Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization and Good Standing), Section 4.2 (Authority and Enforceability) and Section 4.6 (Brokers Fees). “R&W Policy” means that certain representation and warranty insurance policy providing coverage for, among other things, Losses incurred by any Purchaser Covered Party as a result of breaches of the representations and warranties made by the Company in Article 3 or in the Company Closing Certificate (subject to any limitations contained therein), which has been conditionally bound as of the date hereof and will be fully bound promptly following the Closing. “Release” means the release, spill, emission, leaking, pumping, pouring, emptying, escaping, dumping, injection, deposit, disposal, discharge, dispersal, leaching or migrating of any Hazardous Material into the environment. “Release Agreements” means, collectively, those certain Release Agreements entered into concurrently with the execution and delivery of this Agreement by Purchaser and the applicable Company Securityholders party thereto. “Representative” or “Representatives” means, with respect to a particular Person, any director, general partner, officer, employee, agent, consultant, advisor or other representative of such Person, including outside legal counsel, accountants and financial advisors. “Restrictive Covenant Agreements” means, collectively, those certain Restrictive Covenant Agreements entered into concurrently with the execution and delivery of this Agreement by Purchaser, the Company and the applicable Company Securityholder party thereto. “RSUs” means the restricted stock units to be issued by Purchaser to the former holders of Options in connection with the consummation of the transactions contemplated by this Agreement, as set forth on Appendix B. “RSU Eligible Option” means those Options that will be cancelled and converted into the right to receive RSUs in connection with the consummation of the transactions contemplated by this Agreement, as set forth on Appendix B. “Sales Tax Escrow Amount” means an amount equal to the sum of (a) the State Sales Tax Escrow Amount plus (b) the Chicago PPLT Tax Escrow Amount. “Shrink Wrap Code” means commercially available, off the shelf software licensed to the Company on standard customer terms with annual aggregate payments of $100,000 or less.


 
15 US-DOCS\157178066.13 “Software” means software, firmware and computer programs and applications (including source code, executable or object code, architecture, algorithms, data files, computerized databases, plugins, libraries, subroutines, tools and APIs) and related documentation. “Specific Indemnity Amount” means an amount equal to $750,000; provided, that in the event any Specific Indemnity Escrow Release Trigger occurs prior to the Closing, the Specific Indemnity Amount shall be reduced to zero (0). “State Sales Tax Escrow Amount” means an amount equal to $201,000. “Straddle Period” means any taxable period that begins on or before the Closing Date and ends after the Closing Date. “Subsidiary” means, with respect to a specified Person, any corporation or other Person of which securities or other interests having the power to elect a majority of that corporation’s or other Person’s board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (including securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the specified Person or one or more of its Subsidiaries. “Target Net Working Capital” means $488,813.00. “Tax” means any (a) taxes, charges, fees, levies, penalties or other assessments imposed by any Governmental Authority, including income, margin, gross margin, franchise, profits, capital gains, capital stock, transfer, sales, use, escheat, unclaimed property, abandonment, occupation, property, excise, severance, windfall profits, stamp, duty, reserve, license, payroll, withholding, ad valorem, value added, alternative minimum, environmental, customs, social security (or similar), employment, unemployment, workers compensation, sick pay, disability, registration and other taxes, assessments, charges, duties, interest, fees, levies or other similar governmental charges of any kind whatsoever, whether disputed or not, together with all estimated taxes, deficiency assessments, additions to tax, charges, duties, levies, penalties and interest, (b) Liability for the payment of any amount of a type described in clause (a) arising as a result of being or having been a member of any consolidated, combined, unitary or other group or being or having been included or required to be included in any Tax Return related thereto; and (c) Liability for the payment of any amount of a type described in clause (a) or clause (b) as a result of any obligation to indemnify or otherwise assume or succeed to the liability of any other Person. “Tax Proceeding” means any audit, examination, investigation or other proceedings with respect to Taxes imposed on or with respect to the assets, operations or activities of the Company. “Tax Return” means any report, return, declaration, claim for refund, or information return or statement related to Taxes, including any schedule or attachment thereto, and including any amendment thereof. “Transaction Expenses” means, without duplication, (a) any and all of the fees, costs and expenses of, and other payments to, third parties that are incurred by or on behalf of the Company or Company Securityholders (and payable or reimbursable by the Company) relating to or arising from or in connection with (i) the negotiation, preparation, execution, delivery, consummation and performance of this Agreement and the Ancillary Agreements, and the transactions contemplated


 
16 US-DOCS\157178066.13 hereby and thereby, and (ii) any due diligence requests or activity related to such sale process or such transactions, including any legal, accounting, Tax, broker, finder and investment banking fees and expenses incurred by the Company or the Company Securityholders (and payable or reimbursable by the Company) relating to or arising from or in connection with the transactions contemplated hereby, in each case of this clause (a), that remain unpaid as of immediately prior to the Closing, (b) any severance, bonuses, retention or change of control payments or other amounts payable to employees or consultants of the Company to the extent such payments become payable by the Company in connection with the consummation of the transactions contemplated by this Agreement (including, for the avoidance of doubt, any “double-trigger” severance or other change of control payments or transaction bonuses payable in connection with the consummation of the Merger and the post-Closing termination of employment of such persons), including the employer portion of any employment, payroll, social security or other employer Tax payment associated with such items; (c) the employer portion of any employment, payroll, social security or other employer Taxes associated with vesting and/or payment of the Optionholder Closing Payments in respect of Employee Options; (d) one-half of the premiums, taxes, commissions, costs, expenses, fees and other payments required to obtain the R&W Policy; (e) one-half of all costs, expenses and fees of the Paying Agent; (f) one-half of all costs, expenses and fees of the Escrow Agent; (g) one-half of the Transfer Taxes pursuant to Section 9.6; (h) one-half of the filings fees relating to the HSR filing previously made by the parties; and (i) all costs, expenses and fees to obtain the Tail Policy, including the premium thereof; provided, that (A) any Liability described in the immediately preceding clause (b) incurred or payable as a result of any action taken by Purchaser or its Affiliates (including the Surviving Company from and after the Closing) in respect of the Contracts set forth on Section 1.1(a) of the Company Disclosure Schedule shall not constitute Transaction Expenses, and (B) Transaction Expenses shall exclude any amounts included in Closing Indebtedness or Closing Net Working Capital as finally determined pursuant to Section 2.14. “Transaction Tax Deductions” means any Tax deductions or other Tax benefits resulting from fees, costs, investment banking fees, financial advisory fees, brokerage fees, attorneys’ fees, accountants’ fees and any other expenses of the Company that are “more likely than not” deductible for U.S. federal and applicable state income tax purposes in a Pre-Closing Tax Period related to or arising out of the transactions contemplated by this Agreement, including any loss, deduction or credit resulting from any Transaction Expenses, employee bonuses, payments made with respect to the Options, debt prepayment fees or capitalized debt costs, in each case, solely to the extent such expense is specifically included as a reduction to the Merger Consideration or is actually paid by the Company prior to Closing. For this purpose, the parties agree to apply any available elections under IRS Rev. Proc. 2011-29 to treat seventy percent (70%) of any “success-based fees,” within the meaning of Treasury Regulation Section 1.263(a)-5(f) and IRS Rev. Proc. 2011-29, as an amount that did not facilitate the transactions contemplated by this Agreement and therefore, for purposes of determining the Transaction Tax Deductions, treat seventy percent (70%) of such costs as deductible in the taxable year that includes the Closing Date for U.S. federal and applicable state income tax purposes. “Treasury Regulations” means the United States Federal Income Tax Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). “Unvested Equity Amount” means the sum of (x) the Unvested Option Amount (as defined on Appendix B), plus (y) the Unvested Restricted Stock Total Amount (as defined on Appendix B). “Warrantholder Closing Payment” means, with respect to each Warrant, an amount in cash equal to the product of (x) the excess, if any, of the Per Share Closing Payment over the per share


 
17 US-DOCS\157178066.13 exercise price of such Warrant, multiplied by (y) the aggregate number of shares of Common Stock issuable upon the exercise of such Warrant in full. “Warrants” means the Warrants issued to the Company Warrantholders as disclosed in Section 3.4(c)(i) of the Company Disclosure Schedule. Section 1.2 Additional Defined Terms. For purposes of this Agreement, the following terms have the meanings specified in the indicated Section of this Agreement: Defined Term Section Agreement Preamble Additional Amounts 7.2(b) Closing 2.1 Closing Balance Sheet 2.14(a) Closing Date 2.1 Closing Statement 2.14(a) COBRA 3.15(b) Company Preamble Company Closing Certificate 2.12(a)(iv) Company Disclosure Schedule Article 3 Company Representative Preamble Confidentiality Agreement 5.5 Contaminant 3.10(d) Continuing Employee 5.8 Contributor 3.10(i) Consultant Proprietary Information Agreement 3.10(i) Data Protection Policies 3.18(f) Contaminant 3.10(d) Deductible 8.4(a) Defense Conditions 8.6 D&O Indemnified Parties 5.7(a) Director Indemnification Agreements 5.7(a) Dispute Notice 2.14(b) Dissenting Shares 2.10 Effective Time 2.1 Escrow Agreement 2.13(c) Estimated Cash Adjustment Amount 2.11 Estimated Closing Balance Sheet 2.11 Estimated Closing Indebtedness 2.11 Estimated Closing Net Working Capital 2.11 Estimated Closing Statement 2.11 Estimated Merger Consideration 2.11 Estimated Transaction Expenses 2.11 Expense Fund 2.13(h) Favorable PLR 9.10(b) Financing Sources 5.11(c) Financial Statements 3.5(a)


 
18 US-DOCS\157178066.13 Funded Indebtedness 2.12(a)(i) Incidental Licenses 3.10(e) Indemnification Notice 8.5 Indemnified Party 8.5 Indemnifying Party 8.5 Indemnity Escrow Account 2.13(d) Independent Accounting Firm 2.14(c) Latest Balance Sheet 3.5(a) Lease 3.9 Leased Real Property 3.9 Letter of Transmittal 2.7(b) Loss Payment 8.4(d) Material Contracts 3.11(a) Material Customer 3.22(a) Material Supplier 3.22(a) Merger Recitals MergerSub Preamble Net Recoveries 8.7 Non-Recourse Party 11.16 Optionholder Letter 2.8 Outside Date 7.1(e) Paying Agent 2.7(a) Paying Agent Agreement 2.7(a) Payoff Letters 2.12(a)(i) PLR Request 9.10(b) Post-Signing Consent 5.4(c) Price Adjustment Deficit 2.14(e) Price Adjustment Escrow Account 2.13(c) Price Adjustment Surplus 2.14(f) Proprietary Information Agreements 3.10(i) Purchaser Preamble Purchaser Closing Certificate 2.12(b)(iv) Purchaser Indemnifying Parties 8.3 Purchaser Indemnitee 8.2 Purchaser Representations 4.9 Qualified Plan 3.15(a) Required Information 5.11(c) Requisite Closing Stockholder Approval 5.4(e) Restricted Company Stock Repurchase 2.6(e) RSU Eligible Adjustment Escrow Account 2.13(g) RTF Termination 7.2(b) Sales Tax Escrow Account 2.13(f) Sales Tax Remediation Date 9.10(d) Securities Act 4.5 Securityholder Payment Schedule 2.11(b) Seller Indemnifying Parties 8.2 Seller Indemnitee 8.3 Seller Related Parties 3.30


 
19 US-DOCS\157178066.13 Seller Representations 3.30 Specific Indemnity Escrow Account 2.13(e) State and Local Sales Taxes 9.10(a) Stockholder Notice 5.4(c) Support Agreement Recitals Supporting Stockholders Recitals Surviving Company 2.1 Tail Policy 5.7(b) Termination Fee 7.2(b) Third Party Claim 8.6 Transfer Taxes 9.6 Unaudited Financial Statements 3.5(i) UPE 5.4(d) VDA 9.10(c) Voting Agreement Recitals Warrant Cancellation Agreement 2.9(a) Section 1.3 Construction. (a) Any reference in this Agreement to an “Article,” “Section,” “Exhibit” or “Schedule” refers to the corresponding Article, Section, Exhibit or Schedule of or to this Agreement, unless the context indicates otherwise, and the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The table of contents and the headings of Articles and Sections are provided for convenience only and are not intended to affect the construction or interpretation of this Agreement. All words used in this Agreement are to be construed to be of such gender or number as the circumstances require. The words “including,” “includes,” or “include” are to be read as listing non-exclusive examples of the matters referred to,and shall deemed to be followed by “without limitation” in each instance. The word “or” shall not be exclusive. Where this Agreement states that a party “shall”, “will” or “must” perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with this Agreement. The phrase “ordinary course of business” and phrases of similar import will be deemed to mean the ordinary course of business of the applicable Person consistent with past practice (including with respect to quantity and frequency). Any reference to a statute is deemed also to refer to any amendments or successor legislation as in effect at the relevant time. Accounting terms which are not otherwise defined in this Agreement have the meanings given to them under GAAP. To the extent that the definition of an accounting term defined in this Agreement is inconsistent with the meaning of such term under GAAP, the definition set forth in this Agreement will control. Any reference to a Contract or other document as of a given date means the Contract or other document as amended, supplemented and modified from time to time through such date. Any reference to “days” shall mean calendar days unless Business Days are expressly specified, and if the day by which an action is required or permitted to be taken under this Agreement is a non-Business Day, then such action may be taken on the next succeeding Business Day. References to documents or information that have been or are required to be “provided” or “made available” (or other similar terms) to Purchaser means that such documents or information were posted to the Data Room and accessible by Purchaser and its Representatives at least three (3) hours prior to the execution of this Agreement.


 
20 US-DOCS\157178066.13 (b) The inclusion of any information in the Company Disclosure Schedule shall not be deemed an admission or acknowledgement, in and of itself and solely by virtue of the inclusion of such information in the Company Disclosure Schedule, that such information is required to be listed in the Company Disclosure Schedule or that such items are material to the Company or would have a Material Adverse Effect, as the case may be, and shall not be deemed to establish or imply a measure for materiality for purposes of this Agreement. The headings, if any, of the individual sections of the Company Disclosure Schedule are provided for convenience only and are not intended to affect the construction or interpretation of this Agreement. The Company Disclosure Schedule is arranged in sections and paragraphs corresponding to the numbered and lettered sections and paragraphs of Article 3 merely for convenience, and the disclosure of an item in one section of the Company Disclosure Schedule as an exception to a particular representation or warranty shall be deemed adequately disclosed as an exception with respect to all other representations or warranties to the extent that the relevance of such item to such representations or warranties is reasonably apparent on the face of such disclosure. No disclosure in any section of the Company Disclosure Schedule relating to a possible breach or violation of any Contract or Law shall be construed as an admission or indication that a breach or violation exists or has actually occurred. (c) The specification of any dollar amount in the representations and warranties or otherwise in this Agreement or in the Company Disclosure Schedule is not intended and shall not be deemed to be an admission or acknowledgement of the materiality of such amounts or items. ARTICLE 2 MERGER Section 2.1 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) will take place remotely via the electronic delivery of documents and signatures (by .pdf or other electronic exchanges) not later than the third Business Day immediately following the date on which the last of the conditions set forth in Article 6 has been satisfied or waived (other than those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver of such condition at the Closing), or at such other time and place as the Company and Purchaser may agree in writing. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.” For all purposes under this Agreement and each of the Ancillary Agreements, all matters at Closing will be considered to take place simultaneously and no delivery of any document will be deemed complete until all transactions and deliveries of documents are completed. Section 2.2 Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, MergerSub shall be merged with and into the Company in accordance with the laws of the State of Delaware, at which point, the separate existence of MergerSub shall cease, and the Company shall be the entity surviving the Merger (the “Surviving Company”) and shall succeed to and assume all of the rights and obligations of MergerSub. At the Closing, the Company and Purchaser will cause the Certificate of Merger to be executed and filed with the Delaware Secretary of State. The Merger shall, in accordance with the DGCL, become effective as of such time as the Certificate of Merger is duly filed with the Delaware Secretary of State or at such time thereafter as is mutually agreed by Purchaser and the Company in writing and provided in the Certificate of Merger (the “Effective Time”). At the Effective Time, subject to the terms of this Agreement, the Surviving Company may take any action (including executing and delivering any document) in the name and on behalf of either the Company or MergerSub in order to carry out and give effect to the Merger.


 
21 US-DOCS\157178066.13 Section 2.3 Effect of Merger Generally. At and after the Effective Time, the Merger shall have the effects provided herein and set forth in the applicable provisions of the DGCL. Without limiting the generality of the foregoing and subject thereto, at the Effective Time the separate existence of MergerSub will cease and the Company will continue as the Surviving Company. Without other transfer, all of the properties, rights, privileges, immunities, powers and franchises of the Company and MergerSub shall vest in the Surviving Company, and all debts, liabilities, obligations and duties of the Company and MergerSub shall become the debts, liabilities, obligations and duties of Surviving Company. Section 2.4 Governing Documents. At the Effective Time, by virtue of the Merger and without further action on the part of any party hereto, (a) the certificate of incorporation of the Company will be amended and restated in its entirety to read as the certificate of incorporation of MergerSub as in effect immediately prior to the Effective Time, except that the name of the Surviving Company shall remain as the name of the Company as of immediately prior to the Effective Time, and as so amended and restated shall be the certificate of incorporation of the Surviving Company until thereafter as amended in accordance with applicable Law, and (b) the bylaws of the Company will be amended and restated in their entirety to read as the bylaws of MergerSub as in effect immediately prior to the Effective Time, except that the name of the Surviving Company shall remain as the name of the Company as of immediately prior to the Effective Time, and as so amended and restated shall be the bylaws of the Surviving Company until thereafter as amended in accordance with applicable Law. Section 2.5 Directors and Officers. At the Effective Time, the directors of MergerSub immediately prior to the Effective Time shall be the directors of the Surviving Company. At the Effective Time, the officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Company. Section 2.6 Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof or any party hereto, each share of Company Stock issued and outstanding immediately prior to the Effective Time (other than (i) shares held in the Company’s treasury and (ii) Dissenting Shares) shall be converted into (A) the right to receive the applicable Company Stock Per Share Merger Consideration, payable in cash to the holder thereof, and (B) the right of the holder thereof to receive such holder’s Pro Rata Percentage (or applicable portion thereof attributable to such share of Company Stock) of any amounts that may become payable to Company Securityholders following the Closing as and when such amounts become payable in accordance with the terms of this Agreement, in each case, without interest thereon, upon surrender of the Certificate or Book-Entry Share formerly representing such share, in accordance with this Section 2.6 and Section 2.7. All amounts payable to Company Stockholders pursuant to this Agreement shall be subject to and reduced by any applicable Tax withholding amounts as provided in Section 2.15. (b) At the Effective Time, by virtue of the Merger and without any action on the part of any party hereto, each share of Company Stock held in the treasury of the Company immediately prior to the Effective Time shall be canceled, retired and shall cease to exist and no payment shall be made with respect thereto.


 
22 US-DOCS\157178066.13 (c) At the Effective Time, by virtue of the Merger and without any action on the part of any party hereto, each share of capital stock of MergerSub issued and outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Company. (d) From and after the Effective Time, the holders of Certificates or Book-Entry Shares (other than Certificates or Book-Entry Shares representing Dissenting Shares) shall cease to have any rights with respect to such Certificates or Book-Entry Shares, except the right to receive their respective Company Stock Per Share Merger Consideration and Pro Rata Percentages of Post-Closing Distributions, in each case, as and when payable in accordance with the terms of this Agreement without interest thereon. (e) Immediately prior to the Effective Time (but subject to and contingent upon the subsequent consummation of the Merger in accordance with the terms hereof), all shares of RSU Eligible Restricted Company Stock that remain unvested shall be repurchased by the Company for an aggregate amount of cash equal to the Aggregate Restricted Stock Repurchase Amount (as defined in Appendix B) (the “Restricted Stock Repurchase”); provided, that the holder of such shares of RSU Eligible Restricted Company Stock shall be entitled to receive a number of RSUs as determined in accordance with Appendix B having an aggregate value as of immediately prior to the Effective Time equal to the Unvested Restricted Stock RSU Eligible Amount (as defined in Appendix B). For the avoidance of doubt, the parties hereto acknowledge and agree that the shares of RSU Eligible Restricted Company Stock shall not constitute outstanding shares of Common Stock for any purpose hereunder, including for purposes of calculating the aggregate number of Fully-Diluted Outstanding Shares. Section 2.7 Exchange of Certificates and Book-Entry Shares. (a) At or prior to the Effective Time, the Company shall appoint and enter into a paying agent agreement mutually acceptable to Purchaser, the Company Representative and the Company (the “Paying Agent Agreement”) with Acquiom Financial LLC (the “Paying Agent”). (b) As soon as reasonably practicable after the date hereof, the Company shall deliver (or, at the Company’s option, cause to be delivered through the Paying Agent) to each Company Stockholder of record a letter of transmittal, substantially in the form of Exhibit C attached hereto (the “Letter of Transmittal”). Payment to a Company Stockholder of its portion of the Merger Consideration shall be subject to and conditioned upon such Company Stockholder’s delivery to the Paying Agent of a properly completed and executed Letter of Transmittal, together with all related items required thereby. For each Company Stockholder which has delivered a properly completed and executed Letter of Transmittal, together with all related items required thereby, to the Paying Agent at least two (2) Business Days prior to the Closing, the Company will cause the Paying Agent to pay the portion of the Payment Fund payable to such Company Stockholder in respect of such Company Stockholder’s Company Stock, in each case, as set forth on the Securityholder Payment Schedule, without interest, at the Closing in immediately available funds. For any Company Stockholder which has not delivered a properly completed and executed Letter of Transmittal, together with all related items required thereby, to the Paying Agent at least two (2) Business Days prior to the Closing, such Company Stockholder will be entitled to receive the portion of the Payment Fund payable to such Company Stockholder in respect of such Company Stockholder’s Company Stock as set forth on the Securityholder Payment Schedule, without interest, promptly following such Company Stockholder’s delivery to the Paying Agent of a properly completed and executed Letter of Transmittal, together with all related items required thereby. As of the Effective Time and until surrendered in accordance with


 
23 US-DOCS\157178066.13 the provisions of this Section 2.7 by the holder thereof, each Certificate or Book-Entry Share (other than Certificates or Book-Entry Shares representing Dissenting Shares) shall represent for all purposes only the right to receive such holder’s applicable Merger Consideration and Pro Rata Percentage of any Post-Closing Distributions represented by such Certificate or Book-Entry Share, in the manner and at the times provided for by this Agreement, without interest. All cash paid upon surrender of the Certificates or Book-Entry Shares in accordance with this Section 2.7 shall be deemed to have been paid in satisfaction of all rights pertaining to the shares of Company Stock represented thereby (except for the right of the holder of such shares of Company Stock to receive its Pro Rata Percentage of any Post-Closing Distributions). (c) In the event that any Certificate (other than any Certificate representing Dissenting Shares) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact and related indemnity by the registered holder of such lost, stolen or destroyed Certificate in form and substance acceptable to Purchaser, the Paying Agent will deliver to such registered holder in exchange for such affidavit and related indemnity such registered holder’s applicable portion of the Payment Fund represented by such Certificate as set forth in the Securityholder Payment Schedule, payable in cash pursuant to this Section 2.7 and such holder’s Pro Rata Percentage of any Post-Closing Distributions, in each case, in the manner and at the times provided for by this Agreement, without interest. (d) After the Effective Time, there shall be no transfers on the stock transfer books of Surviving Company of the shares of Company Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates (other than Certificates representing Dissenting Shares) are presented to Purchaser, they shall be exchanged for the applicable Merger Consideration represented by such Certificate as set forth in the Securityholder Payment Schedule, payable in cash pursuant to this Section 2.7, in the manner and at the times provided for by this Agreement, without interest. (e) Any portion of the Payment Fund which remains undistributed for twelve (12) months after the Effective Time shall be delivered to Purchaser, and any holders of Certificates and Book- Entry Shares who have not theretofore complied with this Agreement and the instructions set forth in the Letter of Transmittal provided to such holders in accordance with this Agreement shall thereafter look only to Purchaser for payment of the applicable Merger Consideration to which they are entitled. (f) None of Purchaser, MergerSub or the Company shall be liable to any Person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates or Book-Entry Shares shall not have been surrendered prior to seven (7) years after the Effective Time (or immediately prior to such earlier date on which any payment pursuant to this Agreement would otherwise escheat to, or become the property of, any Governmental Authority), the cash payment in respect of such Certificate or Book-Entry Share shall, unless otherwise provided by applicable Law, become the property of Purchaser, free and clear of all Encumbrances. Section 2.8 Options. (a) At the Effective Time, and without any action on the part of any holder thereof, each outstanding and unexercised In-the-Money Option that is vested and exercisable (including any Accelerated Option (as defined in Appendix B), and any other In-the-Money Option that becomes vested on an accelerated basis at or prior to the Effective Time) as of immediately prior to the Effective Time (each such In-the-Money Option (or portion thereof), a “Vested In-the-Money Option”), shall be converted into the right to receive the Optionholder Closing Payment attributable to such Vested In-


 
24 US-DOCS\157178066.13 the-Money Option. As soon as reasonably practicable after the date hereof, the Company shall deliver (or, at the Company’s option, cause to be delivered through the Paying Agent), to each holder of Options an optionholder letter, substantially in the form of Exhibit D attached hereto (the “Optionholder Letter”). Payment to a holder of Employee Options of his or her applicable portion of the Employee Optionholder Aggregate Merger Consideration under this Agreement (in each case, subject to and conditioned upon such holder’s delivery to the Company and Purchaser of a properly completed and executed Optionholder Letter). For each holder of Employee Options who has delivered a properly completed and executed Optionholder Letter, to the Company and Purchaser prior to the Closing, the Optionholder Closing Payments payable to such holder as set forth on the Securityholder Payment Schedule, without interest, will be paid by the Surviving Company to such holder as promptly as practicable following the Closing through the Surviving Company’s (or its applicable Affiliate’s) payroll processing system, net of any applicable Tax withholding as provided in Section 2.15. For each holder of Non-Employee Options, the applicable Optionholder Payments will be paid by the Paying Agent from the Non-Employee Option Fund to such holder, subject, in each case, to such holder’s execution and delivery of any documents required to be delivered by such holder to the Paying Agent under the Paying Agent Agreement. For any holder of Employee Options who has not delivered a properly completed and executed Optionholder Letter, to the Company and Purchaser prior to the Closing (or, in the case of any holder of Non-Employee Options, who has not delivered the documentation required under the Paying Agent Agreement to receive the applicable portion of the Non-Employee Option Payment Fund to the Paying Agent), such holder will be entitled to receive the Optionholder Closing Payment payable to such holder as set forth on the Securityholder Payment Schedule (or applicable portion thereof attributable to such holder’s Vested In-the-Money Options) and such holder’s Pro Rata Percentage of any Post-Closing Distributions, without interest, promptly following such holder’s delivery (i) to the extent such Vested In-the-Money Options constitute Employee Options, to Purchaser and the Company of a properly completed and executed Optionholder Letter or, (ii) to the extent such Vested In-the-Money Options constitute Non-Employee Options, such holder’s delivery of properly completed and executed documents required to be submitted by such holder to the Paying Agent under the Paying Agent Agreement to receive the applicable portion of the Non-Employee Option Payment Fund. For avoidance of doubt, any portion of Post-Closing Distributions allocable to Vested In-the-Money Options, if any, shall be payable to the holders of such Vested In-the-Money Options in accordance with their respective Pro Rata Percentages, and at the times set forth in, this Agreement, without interest thereon. (b) At the Effective Time, and without any action on the part of any holder thereof, each outstanding and unexercised Option (other than Vested In-the-Money Options) shall automatically and without any action on the part of the holder thereof be cancelled and, if such Option is an RSU Eligible Option, converted into the right to receive a number of RSUs as determined in accordance with Appendix B. For the avoidance of doubt, the parties hereto acknowledge and agree that the RSU Eligible Options shall not constitute Vested In-the-Money Options for any purpose hereunder, including for purposes of calculating the aggregate number of Fully-Diluted Outstanding Shares. (c) Prior to the Effective Time, the Company will take all actions reasonably necessary to effect this Section 2.8 under the Option Plan and all Option Agreements, including obtaining approval by the board of directors of the Company or a committee thereof. All amounts payable to holders of Options in respect thereof pursuant to this Agreement shall be subject to and reduced by any applicable Tax withholding amounts as provided in Section 2.15. Any payment of the Employee Optionholder Aggregate Merger Consideration to any current or former employee of the Company for which employment Tax withholding is required will be provided to the Surviving Company or one of its


 
25 US-DOCS\157178066.13 Affiliates for payment to such current or former employee through the Surviving Company’s (or its Affiliate’s) payroll processing service or system. The Company shall take all actions necessary to terminate the Option Plan as of the Effective Time, and no holder of Options issued pursuant to the Option Plan or any participant in the Option Plan shall thereafter have any rights thereunder, including any rights to acquire any equity securities of Purchaser, the Company, the Surviving Company or any other Person, other than as expressly set forth in this Section 2.8 and, with respect to any RSU Eligible Option, Appendix B. Section 2.9 Warrants. (a) At the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof or any party hereto, each Warrant outstanding immediately prior to the Effective Time shall be converted into (A) the right to receive the Warrantholder Closing Payment attributable to such Warrant, and (B) the right of the holder thereof to receive such holder’s Pro Rata Percentage (or applicable portion thereof attributable to such Warrant) of any Post-Closing Distributions, without interest thereon, in each case, subject to the execution and delivery by the applicable Company Warrantholder of a warrant cancellation agreement, in form and substance reasonably acceptable to Purchaser, evidencing the irrevocable (conditioned only on the consummation of the Closing and payment of the applicable Warrantholder Closing Payment) cancellation and termination of such Warrant (a “Warrant Cancellation Agreement”). For avoidance of doubt, any Warrant that is exercised as of immediately prior to the Effective Time (or exercised conditioned upon the occurrence of the Effective Time) shall not be entitled to any Warrantholder Closing Payment, and shall instead entitle the holder thereof to its pro rata share of any payments to be made to the Company Stockholders in respect of the shares of Common Stock underlying such Warrant. (b) As soon as reasonably practicable after the date hereof, the Company shall deliver (or, at the Company’s option, cause to be delivered through the Paying Agent) to each Company Warrantholder a Warrant Cancellation Agreement. Payment to a Company Warrantholder of the applicable Warrantholder Closing Payment shall be subject to and conditioned upon such Company Warrantholder’s delivery to the Paying Agent of a properly completed and executed Warrant Cancellation Agreement. For each Company Warrantholder which has delivered a properly completed and executed Warrant Cancellation Agreement, to the Paying Agent at least two (2) Business Days prior to the Closing, the Company will cause the Paying Agent to pay the portion of the Payment Fund constituting the Warrantholder Closing Payment payable in respect of such Company Warrantholder’s Warrants, in each case, as set forth on the Securityholder Payment Schedule, without interest, at the Closing in immediately available funds. For any Company Warrantholder which has not delivered a properly completed and executed Warrant Cancellation Agreement to the Paying Agent at least two (2) Business Days prior to the Closing, such Company Warrantholder will be entitled to receive their respective portion of the Payment Fund payable to such Company Warrantholder in respect of such Company Warrantholder’s Warrants as set forth on the Securityholder Payment Schedule, without interest, promptly following such Company Warrantholder’s delivery to the Paying Agent of a properly completed and executed Warrant Cancellation Agreement. The applicable portion of any Post-Closing Distributions, if any, due to the Company Warrantholders shall, subject to and conditioned upon such Company Warrantholder’s delivery to the Paying Agent of a properly completed and executed Warrant Cancellation Agreement, be payable to such Company Warrantholders in accordance with, and at the times set forth in, this Agreement, without interest thereon in accordance with their respective Pro Rata Percentages.


 
26 US-DOCS\157178066.13 Section 2.10 Dissenting Shares. Each share of Company Stock issued and outstanding immediately prior to the Effective Time held by Company Stockholders who shall have properly exercised their appraisal rights with respect thereto under Section 262 of the DGCL (such shares of Company Stock, the “Dissenting Shares”) shall not be converted into the right to receive the applicable Company Stock Per Share Merger Consideration pursuant to the Merger, but shall only be entitled to receive payment of the appraised value of such shares in accordance with the provisions of Section 262 of the DGCL, except that each Dissenting Share held by a Company Stockholder who shall thereafter withdraw its demand for appraisal or shall fail to perfect its right to such payment as provided in such Section 262 of the DGCL shall be deemed to be converted, as of the Effective Time, into the right to receive the applicable Company Stock Per Share Merger Consideration and such holder’s Pro Rata Percentage of any Post-Closing Distributions, in the form such holder otherwise would have been entitled to receive as a result of the Merger. The Company shall provide Purchaser prompt written notice of any demands received by the Company for appraisal of shares of Company Stock, any withdrawal of any such demand and any other demand, notice, instrument delivered to the Company prior to the Effective Time pursuant to Section 262 of the DGCL that relate to such demand, and Purchaser shall have the opportunity and right to participate in all negotiations and proceedings with respect to such demands; provided, that, without the prior written consent of Purchaser, the Company shall not make any payment with respect to, settle, compromise, or waive any Company Stockholder’s failure to comply with the DGCL, or offer or agree to do any of the foregoing. Section 2.11 Pre-Closing Deliveries. (a) Pre-Closing Adjustment. At least three (3) Business Days prior to the Closing Date, the Company will cause to be prepared and delivered to Purchaser (i) an estimated consolidated balance sheet of the Company as of the Adjustment Time, prepared in accordance with the Accounting Principles (the “Estimated Closing Balance Sheet”), and (ii) statement, prepared in good faith and in accordance with the Accounting Principles and the applicable definitions contained in this Agreement (together with the Estimated Closing Balance Sheet, the “Estimated Closing Statement”), setting forth the Company’s good faith calculations as of the Adjustment Time of the (A) Indebtedness (the “Estimated Closing Indebtedness”), (B) Net Working Capital (the “Estimated Closing Net Working Capital”), (C) Transaction Expenses not paid prior to the Closing (the “Estimated Transaction Expenses”), (D) the Closing Cash, the Deferred Cash Amount and the resulting Cash Adjustment Amount (the “Estimated Cash Adjustment Amount”), (E) the Unvested Option Amount, and the holder of, the exercise price per share of, the date of grant of and the number of shares of Common Stock subject to, each RSU Eligible Option outstanding as of immediately prior to the Effective Time and the applicable portion of the Unvested Option Amount attributable to such holder, (F) the Unvested Restricted Stock Total Amount, each holder of shares of RSU Eligible Restricted Company Stock, and the aggregate number of shares RSU Eligible Restricted Company Stock held by such holder as of immediately prior to the consummation of the Restricted Stock Repurchase, and (G) resulting calculation of the Merger Consideration (the “Estimated Merger Consideration”) and the Company Stock Per Share Merger Consideration, together with reasonable supporting documentation for the estimates and calculations contained therein. The Company shall consider in good faith any comments made by Purchaser to the Estimated Closing Statement and components thereof, and the parties shall update the Estimated Closing Statement to the extent that the Company and Purchaser mutually agree upon any such adjustments to the Estimated Closing Statement; provided, that if the parties cannot agree on any such adjustments to the Estimated Closing Statement, such disagreement shall not delay the Closing and the estimates and calculations of the Company set forth in the Estimated Closing


 
27 US-DOCS\157178066.13 Statement shall control for all purposes of the Closing; provided, further, however, that Purchaser shall not be deemed to have waived any of its rights pursuant to Section 2.14. (b) Securityholder Payment Schedule. At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Purchaser a schedule (the “Securityholder Payment Schedule”) which sets forth (i) the holder of, and the class and number of shares of, the Company Stock held by each Company Stockholder (and, with respect to each holder of shares of Preferred Stock, the aggregate number of Preferred Share Common Equivalents with respect to such shares of Preferred Stock), in each case, as of immediately prior to the Effective Time, (ii) (A) the holder of, the exercise price per share of, and the number of shares of Common Stock subject to, each Employee Option outstanding as of immediately prior to the Effective Time and the applicable portion of the Employee Optionholder Aggregate Merger Consideration payable to such holder, and (B) the holder of, the exercise per share of, and the number of shares of Common Stock subject to, each Non-Employee Option outstanding as of immediately prior to the Effective Time and the applicable portion of the Non-Employee Payment Fund payable to such holder, (iii) the holder of each Warrant and the number of shares of Common Stock subject to each Warrant, (iv) each Company Stockholder’s and each Company Warrantholder’s applicable portion of the Payment Fund, (v) the aggregate Per Share Closing Payment, the aggregate number of Fully Diluted Outstanding Shares as of immediately prior to the Effective Time, and each Company Securityholder’s Pro Rata Percentage, and (vi) the aggregate amount of each of the Payment Fund, the Employee Optionholder Aggregate Merger Consideration and the Non-Employee Option Payment Fund; it being understood and agreed that Purchaser and its Affiliates shall be entitled to rely exclusively and conclusively on the Estimated Closing Statement, the Securityholder Payment Schedule and any payment instructions delivered by the Company (if delivered prior to or at the Closing) or by the Company Representative (if delivered following the Closing), without investigation in paying all portions of the consideration payable pursuant to this Agreement on and after the Closing Date, including the Company Stock Per Share Merger Consideration and all Post-Closing Distributions, and (assuming such payments are made in accordance with the foregoing), Purchaser, MergerSub, the Surviving Company, the Company Securityholders, the Optionholders or their respective Affiliates will not be liable for any inaccuracy, error or omission contained therein, or action taken in reliance thereon. Section 2.12 Closing Deliveries; Actions at Closing. (a) At or prior to the Closing, the Company will deliver or cause to be delivered to Purchaser: (i) payoff letters from each holder of Estimated Closing Indebtedness constituting indebtedness for borrowed money set forth on Section 2.12(a)(i) of the Company Disclosure Schedule or that would have been required to be disclosed on such Section of the Company Disclosure Schedule had it existed as of the date hereof (the “Funded Indebtedness”), with each such payoff letter (A) setting forth the name and account wiring instructions of each Person to which the applicable Funded Indebtedness will be due and payable at the Closing and the portion of the Funded Indebtedness to be paid to each such Person at the Closing and (B) indicating that such Person has agreed to release immediately all Encumbrances such Person may have upon the assets or equity of the Company upon receipt of the amount(s) indicated in such payoff letter, in each case, in a form reasonably satisfactory to Purchaser (collectively, the “Payoff Letters”); (ii) the Escrow Agreement, duly executed by the Company Representative;


 
28 US-DOCS\157178066.13 (iii) resignations effective as of the Closing Date of (A) each director and (B) each officer of the Company as Purchaser may have requested in writing no later than two (2) Business Days prior to the Closing Date; provided, that no such resignation will in any way be considered a termination of employment or otherwise impact any employment arrangements or agreements; (iv) (A) a certificate dated as of the Closing Date, duly executed by an authorized officer of the Company, certifying that attached thereto are (1) correct and complete copies of the Company’s Certificate of Incorporation and bylaws, (2) the resolutions of the board of directors of the Company authorizing and approving the execution, delivery and performance of, and the consummation of the transactions contemplated by this Agreement, (3) the Post-Signing Consent, and that such resolutions and the Post-Signing Consent have not been amended, modified, revoked or rescinded, in whole or in part, and (B) a certificate dated as of the Closing Date that the conditions set forth in Section 6.1(a) and (b) have been satisfied (the certificate described in this clause (B), the “Company Closing Certificate”); (v) a certificate of good standing with respect to the Company, issued by the Delaware Secretary of State dated not more than ten (10) days prior to the Closing Date; (vi) unless otherwise requested by Purchaser in writing no less than three (3) Business Days prior to the Closing Date, a true, correct and complete copy of resolutions adopted by the board of directors of the Company or any applicable committee thereof authorizing the termination of the Company’s 401(k) Plan (the “401(k) Plan”) and the Option Plan, with such termination to be effective as of the date immediately preceding the Closing Date and contingent upon the Closing, in each case, in a form reasonably satisfactory to Purchaser; (vii) certificates of the Secretary of State or equivalent authority of each jurisdiction in which the Company is required to be qualified to do business, dated no earlier than ten (10) days prior to Closing Date, establishing that the Company is in existence and otherwise is in good standing to transact business; (viii) evidence reasonably satisfactory to Purchaser of the termination of the agreements set forth on Schedule 2.12(a)(viii); (ix) a copy of, or evidence of the binding of, the Tail Policy; (x) evidence reasonably satisfactory to Purchaser that a vote of the Company’s stockholders was solicited in all material respects in accordance with the provisions of Section 5.10 and that either (a) the 280G Approval was obtained or (b) that the 280G Approval was not obtained, and, as a consequence, the applicable “parachute payments” shall not be made or provided; (xi) the Securityholder Payment Schedule; (xii) the Expense Invoices for each of the Persons entitled to payment of Transaction Expenses under clause (a) of the definition of Transaction Expenses; (xiii) evidence reasonably acceptable to Purchaser of the repayment at or concurrent with the Closing of the amounts owed to the Company under those certain Promissory Notes set forth on Schedule 2.12(a)(xiii) of the Company Disclosure Schedule; and


 
29 US-DOCS\157178066.13 (xiv) a certificate conforming with the requirements of Treasury Regulations Sections 1.897- 2(h) and 1.1445-2(c)(3) certifying that the Company Equity Securities do not constitute “United States real property interests” under Section 897(c) of the Code, together with a notice to the IRS (which shall be filed by Purchaser with the IRS following the Closing) in accordance with the Treasury Regulations Section 1.897-2(h)(2). (b) At the Closing, Purchaser will deliver or cause to be delivered to the Company or other applicable recipient: (i) the payments required pursuant to Section 2.13; (ii) the Escrow Agreement, executed by Purchaser and the Escrow Agent; and (iii) certificates dated as of the Closing Date, duly executed by an authorized officer of Purchaser and MergerSub, certifying that the conditions set forth in Section 6.2(a) and (b) have been satisfied (the “Purchaser Closing Certificate”). (c) Pursuant to Section 2.2, the Company and Purchaser shall cause the Certificate of Merger to be properly executed and filed with the Delaware Secretary of State. Section 2.13 Payments. On the Closing Date, Purchaser shall pay or deposit (or shall cause the Company to pay or deposit), by wire transfer of immediately available funds, the following: (a) on behalf of the Company, an amount in the aggregate equal to the outstanding amount of each item of Funded Indebtedness to be repaid pursuant to the applicable Payoff Letter, to such account designated in such Payoff Letter; (b) on behalf of the Company, an amount in the aggregate equal to the Estimated Transaction Expenses to enable the Company to pay such Estimated Transaction Expenses, to such accounts designated in writing by the Company prior to the Closing Date; provided, that any Estimated Transaction Expenses subject to payroll Taxes and withholding shall be paid to the Company or the Surviving Company for further distribution to the recipient of such Estimated Transaction Expenses through the Company’s or the Surviving Company’s (as the case may be) regular payroll system; (c) an amount equal to the Price Adjustment Escrow Amount into a separate escrow account (the “Price Adjustment Escrow Account”) designated in writing by the Escrow Agent which shall be established pursuant to the Escrow Agreement; (d) an amount equal to the Indemnity Escrow Amount into a separate escrow account (the “Indemnity Escrow Account”) designated in writing by the Escrow Agent which shall be established pursuant to the Escrow Agreement; (e) an amount equal to the Specific Indemnity Amount into a separate escrow account (the “Specific Indemnity Escrow Account”) designated in writing by the Escrow Agent which shall be established pursuant to the Escrow Agreement; (f) an amount equal to the Sales Tax Escrow Amount into a separate escrow account (the “Sales Tax Escrow Account”) designated in writing by the Escrow Agent which shall be established pursuant to the Escrow Agreement;


 
30 US-DOCS\157178066.13 (g) an amount equal to $3,000,000 into a separate escrow account (the “RSU Eligible Equity Adjustment Escrow Account”) designated in writing by the Escrow Agent which shall be established pursuant to the Escrow Agreement and disbursed in accordance with Appendix B; (h) an amount equal to $125,000 (such amount, the “Expense Fund”) into an account designated in writing by the Company Representative prior to the Closing Date, to be used by the Company Representative to pay expenses incurred by Company Representative in its capacity as Company Representative; (i) an amount equal to the Employee Optionholder Aggregate Merger Consideration as set forth on the Securityholder Payment Schedule to be made in respect of all Employee Options which have been converted into the right to receive Optionholder Closing Payments, to such accounts of the Company or the Company’s payroll provider designated in writing by the Company prior to the Closing Date, to enable the Company (or the Surviving Company) to pay such Optionholder Closing Payments to the holders of such Employee Options (in each case, as set forth in the Securityholder Payment Schedule); and (j) an amount equal to the Payment Fund as set forth in the Securityholder Payment Schedule, into an account designated in writing by the Paying Agent established pursuant to the Paying Agent Agreement. Section 2.14 Post-Closing Adjustment. (a) Within one hundred twenty (120) days after the Closing Date, Purchaser will prepare and deliver to the Company Representative (i) an unaudited consolidated balance sheet of the Company as of the Adjustment Time, prepared in accordance with the Accounting Principles (the “Closing Balance Sheet”), and (ii) a statement, prepared in good faith and in accordance with the Accounting Principles and the applicable definitions contained in this Agreement, setting forth Purchaser’s good faith calculations of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses, Closing Cash, the Deferred Cash Amount and the resulting Cash Adjustment Amount and the resulting calculation of the final Merger Consideration (together with the Closing Balance Sheet, the “Closing Statement”), together with reasonable supporting documentation for the calculations and amounts contained in the Closing Statement. If Purchaser fails to deliver the Closing Statement in accordance with this Section 2.14(a) within one hundred twenty (120) days after the Closing Date, then Purchaser will be deemed to have irrevocably accepted the Company’s calculation of Estimated Closing Indebtedness, Estimated Closing Net Working Capital, Estimated Transaction Expenses, Cash Adjustment Amount and the resulting Estimated Merger Consideration, in which case, all such amounts will be final and binding on the parties for purposes of this Section 2.14. (b) Within forty-five (45) days after delivery of the Closing Statement, the Company Representative may dispute Purchaser’s calculation of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses or the resulting final Merger Consideration by delivering to Purchaser a written notice (a “Dispute Notice”) setting forth in reasonable detail the basis for each such disputed item. The Company Representative may not in its Dispute Notice change the calculation of any line item included in the calculation of Estimated Closing Net Working Capital (as set forth in the Estimated Closing Statement) if such change would, taken on an individual basis, have the result of increasing the Estimated Merger Consideration compared to what was reflected in the Estimated Closing Statement, other than to respond to changes in such line items set out in the Closing Statement. Purchaser will (and will cause the Surviving Company to) furnish to the Company Representative and


 
31 US-DOCS\157178066.13 its representatives such workpapers and other documents and information relating to the disputed items as the Company Representative may reasonably request, and shall make available during normal business hours, without material disruption to Purchaser’s or the Surviving Company’s business, and upon reasonable advance notice, all accounting, financial and tax personnel involved in the preparation of the Closing Statement, in each case, in connection with the Company Representative’s review of the Closing Balance Sheet and the Closing Statement. If the Company Representative fails to deliver a Dispute Notice in accordance with this Section 2.14(b) within forty-five (45) days after delivery of the Closing Statement, then the Company Representative will be deemed to have irrevocably accepted Purchaser’s calculation of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the resulting final Merger Consideration, in which case, all such amounts will be final and binding on the parties for purposes of this Section 2.14. (c) If the Company Representative timely delivers a Dispute Notice to Purchaser, then the Company Representative and Purchaser will attempt in good faith, for a period of thirty (30) days, to resolve the applicable disputed items and agree on the Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the resulting final Merger Consideration, for purposes of this Section 2.14. The Company Representative will furnish to Purchaser such workpapers and other documents and information relating to the disputed items as Purchaser may reasonably request in connection with Purchaser’s review of the Dispute Notice. Any resolution by the Company Representative and Purchaser during such thirty (30)-day period as to any disputed items will be final and binding on the parties for purposes of this Section 2.14. If the Company Representative and Purchaser do not resolve all disputed items by the end of thirty (30) days after the date of delivery of the Dispute Notice, then the Company Representative and Purchaser will submit the remaining items in dispute to an impartial nationally recognized firm of independent certified public accountants appointed by mutual agreement of Purchaser and the Company Representative (the “Independent Accounting Firm”) who, acting as an expert and not an arbitrator, shall resolve the remaining disputed amounts only. Nothing in this Section 2.14(c) shall be construed to authorize or permit the Independent Accounting Firm to resolve any differences among the Company Representative and Purchaser other than such unresolved disagreements, and the Independent Accounting Firm shall not be authorized or permitted to do so. The scope of the disputed items to be resolved by the Independent Accounting Firm shall be limited to whether the Estimated Closing Statement, the Closing Statement, and the components of each of them, were prepared in accordance with the Accounting Principles and the applicable definitions of this Agreement. The Company Representative and Purchaser will instruct the Independent Accounting Firm to render its determination with respect to the items in dispute in a written report that specifies the conclusions of the Independent Accounting Firm as to each item in dispute and the resulting calculations of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the resulting final Merger Consideration. In making its decision with respect to each disputed item, the Independent Accounting Firm shall not assign a value to any such disputed item that is in excess of the higher, or less than the lower, of the amounts advocated by Purchaser in the Closing Statement or the Company Representative in the Dispute Notice with respect to such disputed line item (as applicable). The Company Representative and Purchaser will each use their commercially reasonable efforts to cause the Independent Accounting Firm to render its written determination within thirty (30) days after referral of the items to such firm or as soon thereafter as reasonably practicable. Absent fraud or manifest error, the Independent Accounting Firm’s determination of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the resulting final Merger Consideration, as set forth in its written report (which written report shall include the Independent Accounting Firm’s calculation of the allocation of its fees and expenses between Purchaser, on the one hand, the Company Representative, on the other hand, determined in accordance


 
32 US-DOCS\157178066.13 with this Section 2.14(c)), will be final and binding on the parties for purposes of Section 2.14(e) and shall be enforceable by a court of competent jurisdiction in accordance with Section 11.12. The Independent Accounting Firm’s decision will be based solely on the information described in Section 2.14(d) and the applicable provisions of this Agreement, and not by way of an independent review. The fees and expenses of the Independent Accounting Firm will be borne equally by the Company Representative, on the one hand, and Purchaser, on the other hand, based upon the relationship the contested amount not awarded to each party bears to the amount actually contested by such party. For example, if Purchaser claims that the appropriate adjustments are $1,000 greater than the amount determined by the Company Representative, and if the Independent Accounting Firm ultimately resolves such claim by awarding to Purchaser $300 of the $1,000 contested, then the fees, costs and expenses of the Independent Accounting Firm will be allocated 70% to Purchaser and 30% to the Company Representative. (d) For purposes of this Section 2.14, to the extent the Independent Accounting Firm is engaged pursuant to Section 2.14(c), the Company Representative and Purchaser will furnish to each other and to the Independent Accounting Firm such workpapers and other documents and information relating to the disputed items as the Independent Accounting Firm may request and are available to that party (or its independent public accountants) and, subject to the last sentence of this Section 2.14(d), will be afforded the opportunity to present to the Independent Accounting Firm any material related to the disputed items and to discuss the items with the Independent Accounting Firm for resolution; provided, that neither the Company Representative nor Purchaser shall assign a value to any such disputed item in their respective presentations that is in excess of the higher, or less than the lower, of the amounts advocated by Purchaser in the Closing Statement or the Company Representative in the Dispute Notice (as applicable). Neither the Company Representative or Purchaser shall have or conduct any communication, either written or oral, with the Independent Accounting Firm without the other party either being present or receiving a concurrent copy of any written communication. (e) If the Merger Consideration as finally determined pursuant to this Section 2.14 is less than the Estimated Merger Consideration (a “Price Adjustment Deficit”), then the Company Representative and Purchaser shall deliver, within two (2) Business Days of such final determination, joint written instructions to the Escrow Agent instructing the Escrow Agent to (i) pay to Purchaser out of the Price Adjustment Escrow Account an amount equal to the Price Adjustment Deficit in cash, and (ii) if the amount of funds in the Price Adjustment Escrow Account exceeds the Price Adjustment Deficit, as finally determined pursuant to this Section 2.14, then such joint written instructions to the Escrow Agent shall further instruct the Escrow Agent to distribute the remaining funds in the Price Adjustment Escrow Account to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures, and (ii) if the amount of funds in the Price Adjustment Escrow Account is less than the Price Adjustment Deficit, as finally determined pursuant to this Section 2.14, then neither the Company Representative, the Company Securityholders, nor any of their respective Affiliates will have any Liability or obligation to make any payment in respect of such excess amount (it being understood that recovery from the Price Adjustment Escrow Account shall be the sole and exclusive remedy available to Purchaser and its Affiliates for any such excess amount). (f) If the Merger Consideration as finally determined pursuant to this Section 2.14 is greater than the Estimated Merger Consideration (a “Price Adjustment Surplus”), then, within two (2) Business Days of such final determination, (i) Purchaser shall pay (or cause to be paid) to the Paying Agent, the aggregate amount of such Price Adjustment Surplus for further distribution to the Company


 
33 US-DOCS\157178066.13 Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures, and (ii) the Company Representative and Purchaser shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to distribute all of the funds in the Price Adjustment Escrow Account to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures; provided, that in no event shall Purchaser be required to pay an amount in excess of the aggregate amount of the Price Adjustment Escrow pursuant to the immediately preceding clause (i). (g) If the Merger Consideration as finally determined pursuant to this Section 2.14 is equal to the Estimated Merger Consideration, then the Company Representative and Purchaser shall deliver, within two (2) Business Days of such final determination, joint written instructions to the Escrow Agent instructing the Escrow Agent to distribute all of the funds in the Price Adjustment Escrow Account to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures. (h) The purpose of this Section 2.14 is to determine the final Merger Consideration to be paid by Purchaser under this Agreement. Any payment made pursuant to this Section 2.14 will be treated by the parties for Tax purposes as an adjustment to the Merger Consideration. Section 2.15 Withholding. Each of Purchaser, the Company, Surviving Company, the Paying Agent, and the Escrow Agent shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement (including any amounts paid out of the Price Adjustment Escrow Account, the Indemnity Escrow Account, the Specific Indemnity Account, the Sales Tax Escrow Account or the RSU Eligible Equity Adjustment Escrow Account) such amounts as are required to be deducted or withheld with respect to the making of such payment under the Code or any other applicable state, local or foreign Tax Law and to collect any necessary Tax forms, including IRS Forms W-8 or W-9, as applicable, or any similar information, from a Company Securityholder and any other recipients of payments hereunder. Any party intending to deduct and withhold any such amounts shall use commercially reasonable efforts to notify the applicable recipient in writing of such intention to deduct and withhold such amounts and the reason therefore at least ten (10) days prior to the due date of the applicable payment, other than with respect to compensatory payments to service providers or as a result of any Person’s failure to deliver the documents described in Section 2.12(a)(xiv). Purchaser and the Company shall use commercially reasonable efforts to cooperate to mitigate any requirement to deduct or withhold from amounts otherwise payable pursuant to this Agreement to the maximum extent permitted by Law. To the extent that amounts are so deducted or withheld and paid to the appropriate Governmental Authority, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF COMPANY The Company represents and warrants to Purchaser and MergerSub, as of the date of this Agreement and as of the Closing Date, as follows, except as set forth on the disclosure schedule delivered by the Company to Purchaser and MergerSub concurrently with the execution and delivery of this Agreement and dated as of the date of this Agreement (the “Company Disclosure Schedule”):


 
34 US-DOCS\157178066.13 Section 3.1 Organization and Good Standing. The Company (a) is duly organized, validly existing and in good standing under the Laws of Delaware and (b) has all requisite power and authority to conduct its business as presently conducted in all material respects and to own, operate and hold under lease its assets and properties as, and in the places where, such assets and properties are currently owned, operated, leased or held in all material respects. The Company is duly qualified or licensed to do business, and is in good standing, as a foreign corporation in each jurisdiction in which the nature of its activities requires such qualification or license, except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect. Section 3.2 Authority and Enforceability. (a) The Company has all requisite power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party and to perform its obligations under this Agreement and each such Ancillary Agreement. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which the Company is a party and the consummation of the transactions contemplated hereby and thereby by the Company have been duly authorized by all necessary action on the part of the Company, subject to the delivery of the Post-Signing Consent. (b) Execution of the Post-Signing Consent by the Company Stockholders set forth in Section 5.4(c)(1), (2) and (3) is the only vote of holders of any class or series of capital stock of the Company necessary to adopt and approve this Agreement and to consummate the Merger and the other transactions contemplated by this Agreement under applicable Law and the Governing Documents of the Company. (c) Assuming that this Agreement and the Ancillary Agreements to which the Company is or will be a party constitute the valid and binding agreement of the other parties hereto and thereto, this Agreement constitutes, and at the Closing each Ancillary Agreement to which the Company is a party will constitute, the valid and binding obligation of the Company, enforceable against the Company in accordance with its and their respective terms, subject to (a) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (b) Laws governing specific performance, injunctive relief and other equitable remedies. Section 3.3 No Conflict; Consents. Except as set forth in Section 3.3 of the Company Disclosure Schedule, neither the Company’s execution, delivery and performance of this Agreement and any Ancillary Agreement to which the Company is a party, nor the consummation by the Company of the transactions contemplated hereby or thereby, will (a) conflict with or violate the Governing Documents of the Company, (b) result in a breach or default under, or create in any Person the right to terminate, cancel, accelerate or modify, or require any notice, consent or waiver under, any Material Contract, in any case with or without notice or lapse of time or both, (c) result in the imposition of any Encumbrance (other than a Permitted Encumbrance) upon any of the assets or properties of the Company, or (d) violate any Law or Judgment applicable to the Company, except, in each case of the preceding clauses (b) through (d), as would not reasonably be expected to have a materially adverse impact on the Company. Assuming the truth and accuracy of the representations and warranties contained in Article 4, no consent of any Governmental Authority is required by the Company in connection with the execution, delivery and performance of this Agreement and any Ancillary Agreement to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby, except for (i) the expiration or termination of the applicable waiting period under the HSR Act, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State, and (iii) such consents set forth on Section 3.3 of the Company Disclosure Schedule.


 
35 US-DOCS\157178066.13 Section 3.4 Capitalization and Subsidiaries. (a) Section 3.4(a) of the Company Disclosure Schedule sets forth as of the date hereof: (i) the authorized capital stock of the Company; (ii) the class and number of issued and outstanding shares of capital stock of the Company; and (iii) the record holders thereof and the class and number of shares held by each such holder. The Company Stock and the other Company Equity Securities reflected on Section 3.4(a) or Section 3.4(c)(i) of the Company Disclosure Schedule represent the only issued and outstanding equity interests of the Company as of the date hereof. All of the shares of Company Stock (A) were duly authorized and are validly issued, fully paid and non-assessable, (B) are owned of record by the Company Stockholders as set forth in Section 3.4(a) of the Company Disclosure Schedule, and (C) were not issued in violation of any preemptive, right of first refusal or other similar rights. (b) The Company has no Subsidiaries. The Company does not own nor have any rights to acquire, directly or indirectly, any (i) capital stock, (ii) options, warrants, equity securities, calls, rights, convertible or exchangeable securities or other Contracts to which the Company is a party to acquire any capital stock or other equity interests, or (iii) any other equity interests of, in each case of the preceding clauses (i) through (iii), any Person. (c) Except as set forth in Section 3.4(a) of the Company Disclosure Schedule or as set forth in Section 3.4(c) of the Company Disclosure Schedule, as of the date hereof, there are no (i) equity interests of any class of the Company, any securities with equity features, or any securities exchangeable into, convertible into or exercisable for such equity interests or securities, issued, reserved for issuance or outstanding or (ii) options, warrants, equity securities, calls, rights, interests containing profit participation features or other Contracts to which the Company is a party or by which the Company is bound (excluding, for the avoidance of doubt, this Agreement) obligating the Company to (A) redeem or cause to be redeemed any equity securities or other securities of the Company or (B) issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional equity interests of the Company, any securities with equity features, or any securities or rights convertible into or exchangeable or exercisable for any such equity interests or other securities, or obligating the Company to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, convertible security, exchangeable security, call, right or Contract. Except as set forth in Section 3.4(c) of the Company Disclosure Schedule, there are no Contracts to which the Company is a party or by which the Company is bound with respect to the voting or the sale or transfer (including such Contracts imposing transfer restrictions on the equity securities of the Company) of any equity interests of the Company. Except as set forth in Section 3.4(c) of the Company Disclosure Schedule, no holder of Indebtedness of the Company has any right to convert or exchange such Indebtedness for any equity interests or other securities of the Company. No holders of outstanding Indebtedness of the Company have any rights to vote for the election of directors of the Company or to vote on any other matter. Except as set forth in Section 3.4(c) of the Company Disclosure Schedule, the Company does not have outstanding stock appreciation rights, phantom stock, or other similar equity rights that provide for equity-linked payments. (d) Section 3.4(d)(i) of the Company Disclosure Schedule sets forth: (i) a list of all Optionholders, (ii) the number of shares of Common Stock subject to each Option Agreement, (iii) the number of such shares that are vested or unvested, (iv) the “date of grant” of such Option Agreement, and (v) the exercise price per share. True, correct and complete copies of the Option Plan, and all agreements and instruments relating to or issued under the Option Plan, (including executed copies of


 
36 US-DOCS\157178066.13 all Option Agreements relating to each Option and the shares of Common Stock purchased under such Option Agreement) have been made available to Purchaser, the Option Plan and Option Agreements have not been amended, modified or supplemented since being made available to Purchaser, all Options were granted pursuant to the Option Agreements in the forms made available to Purchaser and there are no agreements, understandings or commitments to amend, modify or supplement the Option Plan or Option Agreements in any case from those made available to Purchaser. The terms of the Option Plan permit the treatment of Options as provided in this Agreement, without notice to, or the consent or approval of, any Optionholder, the Company Stockholders or otherwise. (e) The Securityholder Payment Schedule delivered pursuant to Section 2.11(b) shall, as of the Closing Date, be true, correct and complete in all respects (except for de minimis inaccuracies). (f) All of the shares of Company Stock were issued in compliance in all material respects with all applicable Laws, including all federal and state securities Laws. Section 3.5 Financial Statements. (a) Attached as Section 3.5 of the Company Disclosure Schedule are the following financial statements (collectively, the “Financial Statements”): (i) the unaudited balance sheet of the Company as of December 31, 2024 (the “Latest Balance Sheet”) and the related unaudited statement of operations, statement of stockholders’ equity and statement of cash flows for the fiscal year then ended, including any notes thereto (the “Unaudited Financial Statements”); and (ii) the audited balance sheet of the Company as of December 31, 2023 and 2022 and the related audited statements of operations, statements of stockholders’ equity and statements of cash flows for the fiscal years then ended, including any notes thereto. (b) Each of the foregoing Financial Statements (i) is accurate and complete in all material respects, was prepared consistent with the books and records of the Company and fairly presents in all material respects the financial condition as of the date thereof and operating results, stockholders’ equity and cash flows for the periods shown therein, of the Company and (ii) has been prepared in accordance with GAAP consistently applied throughout the periods covered thereby, subject in the case of the Unaudited Financial Statements to normal year-end adjustments that are neither individually, nor in the aggregate, material in amount and the absence of footnote disclosures. (c) The Company maintains systems of internal accounting controls over financial reporting sufficient to provide reasonable assurances that transactions are recorded in conformity with GAAP in all material respects. There are not significant deficiencies or material weaknesses in the design or operation of the systems of internal accounting controls over financial reporting of the Company. During the past five (5) years, the Company has not received any written complaint or, to the Company’s Knowledge, oral allegation, assertion or claim from any director, officer, employee or other Representative involved in the accounting function of the Company or auditor of the Company regarding improper accounting or auditing practices, procedures, methodologies, or methods of the Company with respect to the Financial Statements or the internal accounting controls of the Company. (d) Subject to allowances for doubtful accounts expressly set forth in the Latest Balance Sheet, all of the accounts and notes receivable of the Company are valid and enforceable claims, were


 
37 US-DOCS\157178066.13 generated in the ordinary course of business, represent bona fide obligations for the provision of goods and services, are subject to no material set-off or counterclaim and are fully collectively in the ordinary course of business. Since the date of the Latest Balance Sheet, the Company has collected its accounts receivable in the ordinary course of its business and in a manner which is consistent with past practices and has not accelerated any such collections, except to the extent expressly set forth in the Latest Balance Sheet. (e) All accounts payable of the Company reflected in the Latest Balance Sheet or arising after the date thereof are the result of bona fide transactions in the ordinary course of business and have been paid, are not yet due and payable or are being contested in good faith, except to the extent expressly set forth in the Latest Balance Sheet. Section 3.6 No Undisclosed Liabilities. Except as set forth in Section 3.6 of the Company Disclosure Schedule, the Company has no material Liabilities except (a) as and to the extent specifically and adequately reflected or reserved against on the Latest Balance Sheet (and that have not been discharged or paid in full since such date); (b) for those incurred since the date of the Latest Balance Sheet in the ordinary course of business; (c) for those that have been or will be discharged or paid in full prior to the Closing Date; and (d) for Liabilities incurred pursuant to this Agreement. Except as forth in Section 3.6 of the Company Disclosure Schedule, none of the liabilities described in clauses (a) through (d) above relates to or has arisen out of a breach of contract, breach of warranty, tort, infringement, violation of Law or the like by or against the Company or any litigation, Proceeding or Judgment involving the Company. Section 3.7 Absence of Certain Changes and Events. Since the date of the Latest Balance Sheet, (a) the Company has conducted its business only in the ordinary course of business, (b) there has not been any Material Adverse Effect and (c) except as set forth in Section 3.7 of the Company Disclosure Schedule, the Company has not taken any action (or omitted to take any action) that would have violated, contravened or resulted in a breach of, or otherwise would have required the consent of Purchaser under, Section 5.2(b) had it occurred after the date of this Agreement. Section 3.8 Tangible Personal Property. The Company has good and marketable title to, or in the case of leased assets, valid leasehold interests in, all of its tangible property and assets (whether real or personal), free and clear of all Encumbrances (other than Permitted Encumbrances), except as would otherwise not reasonably be expected to have a materially adverse impact on the Company. The properties and assets of the Company, whether owned or leased, constitute all of the tangible assets, properties and rights which are used or useful in the operations of the Company and that are necessary or required for the conduct of the business of the Company as currently conducted in all material respects. The buildings, structures, equipment and other tangible assets of the Company, whether owned or leased, are adequate for the uses for which they are intended, are not in need of maintenance or repair (other than for ordinary and routine items), are structurally sound and in good operating condition and repair (normal wear and tear excepted) and are free of defects that would adversely impact the continued use thereof by the Company immediately following the Closing Date in the conduct of normal operations, in each case, in all material respects. Section 3.9 Real Property. The Company does not own any real property. Section 3.9 of the Company Disclosure Schedule sets forth an accurate and complete description of all real property that is leased, subleased, licensed, occupied or used by the Company (the “Leased Real Property”), which description includes a list of each lease, sublease, license or other contract under which any parcel of real property is leased, subleased, licensed, occupied or used by the Company (each being


 
38 US-DOCS\157178066.13 referred to in this Section 3.9 as a “Lease”), as well as each such property’s street address, the date and term of the applicable Lease, and the name of the parties thereto. The Company has made available to Purchaser complete copies of the Leases in effect as of the date hereof and there has not been any amendment, sublease, sublicense or assignment entered into by the Company in respect of the Leases relating to such Leased Real Property. The Company is not in breach or default of any Lease in any material respect, and, to the Company’s Knowledge, no other party to a Lease is in breach or default of any Lease in any material respect. No party to any Lease has exercised any termination rights with respect thereto. The Company is not a party to, nor has any Liability under, any lease, sublease, license or other occupancy agreement with respect to real property other than the leases identified in Section 3.9 of the Company Disclosure Schedule. Other than the Leased Real Property, the Company does not have any other direct or indirect interest in real property, whether owned, leased or otherwise, and the Leased Real Property comprises all the real property necessary for the Company to properly operate its business in accordance with past practice in all material respects. Except as set forth on Section 3.9 of the Company Disclosure Schedule, the Company currently occupies all of the Leased Real Property leased, subleased or occupied pursuant to the Leases and there are no other parties occupying or with a right to occupy such Leased Real Property. There are no unpaid commissions due to or payable by the Company to any other third party arising pursuant to Contracts (including Leases) entered into prior to the Closing and becoming due after the Closing Date related to the Leased Real Property. Section 3.10 Intellectual Property. (a) Except as would not reasonably be expected to be material to the Company, the Company owns, or possesses sufficient legal rights allowing it to use, all Company Intellectual Property in the conduct of its business as now conducted by the Company in a manner that does not conflict with or Infringe the Intellectual Property rights of others. The Company is the owner of each item of Company Owned IP (including all Company Registered IP and all material unregistered Trademarks listed in Section 3.10(b) of the Company Disclosure Schedule) free and clear of all Encumbrances, other than Permitted Encumbrances and non-exclusive licenses of Company Owned IP granted to the Company’s clients in the ordinary course of business. The Company has the right to bring a claim or suit against a third party for past, present or future Infringement of Company Owned IP and to retain for itself any damages recovered in any such action. To the Company’s Knowledge, no Person is Infringing any material Company Owned IP. (b) The Company has taken commercially reasonable steps to maintain its rights in Company Intellectual Property and in all registrations and applications for registration of Company Registered IP. The Company has taken commercially reasonable steps to protect the confidentiality of the confidential information and Trade Secrets of the Company and any third party that has provided any confidential information or Trade Secrets to the Company under a duty of confidentiality. Section 3.10(b) of the Company Disclosure Schedule lists (i) all Company Registered IP and all material unregistered Intellectual Property owned by the Company, (ii) any actions that must be taken by the Company within ninety (90) days of the Closing Date with respect to any of the foregoing, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates (excluding, however, any assignments) and (iii) any proceedings or actions pending, or to the Company’s Knowledge, threatened before any court, Governmental Authority, arbiter or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere in the world) to which the Company is a party and in which claims are raised relating to the validity, enforceability, scope, ownership or Infringement of any Company Registered IP. With respect to each item of Company Registered IP: (i) the registration, maintenance and renewal fees that have


 
39 US-DOCS\157178066.13 become due to date have been paid, and all necessary documents and certificates required to be filed with the relevant Patent, copyright, trademark or other authorities, Governmental Authorities, or registrars in the United States or foreign jurisdictions, as the case may be, to date for the purposes of maintaining Company Registered IP have been timely filed; (ii) each such item is currently in compliance in all material respects with formal legal filing and payment requirements (including payment of filing, examination and maintenance fees and proofs of use) for purposes of maintaining such item; and (iii) each such item is subsisting, and to the Company’s Knowledge, valid and enforceable. The Company has not misrepresented, or failed to disclose, any material facts or circumstances in connection with any Company Registered IP that would constitute fraud or a misrepresentation with respect to such registration or application or that would otherwise adversely affect the enforceability of any Company Registered IP. (c) All Company Owned IP is fully transferable, alienable, and licensable to any Person whatsoever by the Company without restriction and without payment of any kind to any third party. Neither this Agreement nor the transactions contemplated by this Agreement will cause: (i) the Company to grant to any third party any right to or with respect to any Company Owned IP, (ii) the Company to lose any rights in or to any Company Intellectual Property, or (iii) the Company to be in violation of any contract provision (including restriction on assignment) or to be obligated to pay any royalties or other fees or consideration with respect to any Company Intellectual Property of any third party in excess of those payable by the Company in the absence of this Agreement or the transactions contemplated hereby. (d) Section 3.10(d) of the Company Disclosure Schedule lists all Company Products that, as of the date hereof, are offered by the Company. With respect to the Company Products: (i) there are no unresolved defects, malfunctions or nonconformities that would reasonably be expected to prevent any Company Product from performing in all material respects in accordance with the applicable license agreement, (ii) there are no unresolved claims asserted in writing against the Company or any of its clients or distributors related thereto, nor to the Company’s Knowledge have there been any threats thereof; and (iii) the Company is not required to recall, or otherwise provide notices regarding the operation of, any Company Products. All Company Products are free of any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components that permit unauthorized access or the unauthorized disablement or erasure of such Company Product or data or other software of its users (collectively “Contaminants”). The Company has taken commercially reasonable steps to prevent the introduction of Contaminants into Company Products and Software contained in Company Owned IP. (e) Section 3.10(e) of the Company Disclosure Schedule lists all Contracts to which the Company is a party or by which it is bound under which a third party licenses or provides the right to use any Intellectual Property (including covenants not to sue, non-assertion provisions or releases or immunities from suit that relate to Intellectual Property) to the Company that is material to the Company’s business, excluding any (i) non-disclosure agreements entered into in the ordinary course of business, (ii) agreement, license, assignment, covenant not to sue, or waiver of rights with any current and former employees, consultants or contractors of the Company for the benefit of the Company, (iii) non-exclusive license that is merely incidental to the transactions contemplated in the Contract, the commercial purpose of which is primarily for something other than such license, and (iv) “click-wrap” and “shrink-wrap” licenses and other licenses for Shrink Wrap Code, for Open Source Software, and for a client’s Intellectual Property solely to enable the Company to provide Company Products to such client ((i)-(iv), collectively, “Incidental Licenses”). The Company has complied in all


 
40 US-DOCS\157178066.13 material respects with all such licenses governing third party Intellectual Property. Except as would not reasonably be expected to be material to the Company, other than Intellectual Property licensed to the Company under the licenses set forth in Section 3.10(e) of the Company Disclosure Schedule and Intellectual Property explicitly excluded from the disclosure requirement for Section 3.10(e) of the Company Disclosure Schedule, no third party Intellectual Property is used in or necessary for the conduct of the business of the Company as it currently is conducted, including the design, development, use, hosting, marketing, import for resale, distribution, provisioning, licensing out and/or sale of all Company Products in the Company’s business as currently conducted. (f) The operation of the business of the Company as it has been conducted during the past five (5) years and as currently conducted, including the use, hosting, import, branding, advertising, promotion, marketing, sale, offer for sale, provision, distribution and licensing out of any Company Product, has not and does not Infringe any valid Intellectual Property of any Person. During the past five (5) years, the Company has not been not aware of any Infringement by the Company and has not received any written notice asserting that the Company has Infringed or, by conducting its business would Infringe, any Intellectual Property rights of any other Person (including any demand or request that the Company license any rights from a third party). There are no pending or, to the Company’s Knowledge, threatened claims for which the Company must provide an indemnification or assume any other obligation for any actual or alleged Infringement by the Company. (g) The Company has obtained and possesses valid and enforceable licenses to use all of the Software present on the computers and other Software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s business. (h) It has not been necessary to use any inventions of any of the Company’s employees, consultants or independent contractor (or Persons it currently intends to hire) made prior to their employment or engagement, as applicable, by the Company. (i) Each current and former employee, consultant and independent contractor of the Company has assigned to the Company all Intellectual Property he, she or it developed for or on behalf of the Company that is related to the Company’s business as now conducted. Copies of the Company’s standard form of proprietary information, confidentiality and assignment agreement for employees (the “Employee Proprietary Information Agreement”) and the Company’s standard form of consulting agreement containing proprietary information, confidentiality and assignment provisions for consultants or independent contractors (the “Consultant Proprietary Information Agreement”; and collectively with the Employee Proprietary Information Agreements, the “Proprietary Information Agreements”) have been made available to Purchaser. Each (i) current and former employee of the Company and (ii) current and former consultant or independent contractor of the Company, in each case, who has been involved in the creation, invention or development of Company Intellectual Property or Company Products for or on behalf of the Company (each, a “Contributor”), has executed and delivered an agreement pursuant to which such Contributor assigns to the Company ownership of such Contributor’s rights, title and interest in and to such Intellectual Property. Without limiting the foregoing, no Contributor owns or has any ownership right, claim, interest or option with respect to Company Products or any Company Owned IP, nor has any current or former employee, consultant or independent contractor made any written assertions in the past five (5) years with respect to any such alleged ownership right, claim, interest or option, nor, to the Company’s Knowledge, threatened any such assertion.


 
41 US-DOCS\157178066.13 (j) The Company is not subject to any Judgment, any proceeding in which a Judgment is sought, or any agreement, that restricts or conditions the validity or enforceability of any Company Owned IP or the use, transfer or licensing thereof by the Company in any material respect. (k) No funding, facilities or resources of any government, university, college, other educational institution, or similar international organization or research center was used in the development of Company Products or Company Owned IP. The Company is not nor ever was a member or promoter of, or a contributor to, any industry standards body or other similar organization that could require or obligate the Company to grant or offer to any other Person any license or right to any Company Owned IP. (l) Section 3.10(l) of the Company Disclosure Schedule lists all Open Source Software that has been incorporated into, integrated with, combined with or linked to any Company Product or Company Owned IP by or on behalf of the Company, and indicates whether (and, if so, how) the Open Source Software was modified and/or distributed out by the Company. The Company has not used Open Source Software in any manner that, with respect to any Company Product or any Company Owned IP, (i) requires its disclosure or distribution in source code form, (ii) requires the licensing thereof for the purpose of making derivative works, (iii) imposes any restriction on the consideration to be charged for the distribution thereof, or (iv) grants to any third party, any rights or immunities under Company Owned IP. Except as would not reasonably be expected to be material to the Company, with respect to any Open Source Software that is used by the Company in any way, the Company is in compliance with all applicable licenses with respect thereto. (m) Neither the Company nor any other Person acting on its behalf, has disclosed, delivered or licensed to any Person, agreed to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of, any source code for any Company Product or material Company Owned IP, except for disclosures to Contributors under binding written agreements that prohibit use or disclosure except in the performance of services to the Company. (n) None of the Company Stockholders or any of their Affiliates owns or has any right, claim, interest or option, including the right to further remuneration or consideration, with respect to Company Products or Company Owned IP. Section 3.11 Contracts. (a) Section 3.11(a) of the Company Disclosure Schedule sets forth an accurate and complete list as of the date of this Agreement of each of the following Contracts to which the Company is a party as of the date hereof, excluding any Company Plan that is set forth on Section 3.15(a) of the Company Disclosure Schedule (the Contracts listed in Section 3.11(a) of the Company Disclosure Schedule, or that are required to be listed therein but are not, are referred to in this Agreement as the “Material Contracts”), which are: (i) any Contract with a Material Customer or Material Supplier; (ii) any Contract involving annual payments on the part of the Company in excess of $100,000 which is not terminable by the Company on ninety (90) days’ notice or less without premium or penalty;


 
42 US-DOCS\157178066.13 (iii) any Contract with respect to the voting (including voting trusts or proxies), registration under any securities Law, or the sale or transfer (including Contracts imposing transfer restrictions) of any equity interests of the Company; (iv) any Contract relating to the ownership of any interest in any Person, any joint venture, strategic partnership, partnership or other similar agreement, or any Contract that involves the payment of royalties to any other Person or the sharing of profits, losses, costs or liabilities; (v) all Contracts under which the Company has created, incurred, assumed or guaranteed any Indebtedness in excess of $100,000 individually or $250,000 in the aggregate or granted an Encumbrance (other than a Permitted Encumbrance) on any asset owned or used by the Company; (vi) any Contract for any capital expenditures (or series of related capital expenditures), involving more than $100,000, individually, or $250,000 in the aggregate; (vii) each Contract relating to the acquisition or disposition of any business by the Company or any Contract that provides for the sale of any asset owned or used by the Company (other than Company Products sold or licensed on a non-exclusive basis in the ordinary course of business) or the grant of any preferential rights to purchase any asset owned or used by the Company that is material to the Company; (viii) (A) any reseller or distribution Contracts, or (B) any Contract relating to the promotion, advertising and marketing of the business or products and the various services provided by the Company in connection therewith, in each case of the preceding clauses (A) and (B) involving an aggregate amount of annual payments to or from the Company in excess of $50,000; (ix) all personal property leases and all capitalized leases; (x) all Leases; (xi) any Contract under which (A) the Company grants to or receives from a third party a license or sublicense to any Intellectual Property; or (B) the Company’s ability to use, disclose, license or enforce, or grant an exclusive right to, any Intellectual Property is affected, in each case other than Incidental Licenses and non-exclusive licenses of Company Owned IP or Company Products by the Company in the ordinary course of business; (xii) any Contract or consent order with any Governmental Authority, including any settlement, conciliation or similar agreement with any Governmental Authority; (xiii) any collective bargaining agreement or any other Contract or memorandum of understanding with any labor union or other labor organization; (xiv) any employee severance agreements, programs, policies or arrangements; (xv) any Contract (A) for the employment of any officer, individual employee or other person on a full-time, part-time, or other basis (excluding any standard employee offer letter of the Company for any employee with annual total target compensation of less than $100,000 providing for at-will employment that can be terminated by the Company without advance notice and without payment of severance or early termination fee), (B) providing for the payment of any change of control,


 
43 US-DOCS\157178066.13 retention or other similar payment, or (C) relating to loans to any employees, officers, managers, directors or Affiliates or any other Person (other than 401(k) plan loans in the ordinary course of business); (xvi) any Contract with any Person related to the employment of consultants, third party contractors or temporary employees involving annual payments in excess of $100,000; (xvii) any non-disclosure, non-compete, non-solicitation or confidentiality agreements or agreements regarding ownership and rights with regard to work produced by employees, officers, managers, directors, contractors or consultants (other than the Company’s standard confidentiality and invention assignment agreement entered into with its employees and other service providers and confidentiality provisions contained in Contracts entered into by the Company in the ordinary course of business); (xviii) any Contract required to be disclosed on Section 3.21 of the Company Disclosure Schedule; (xix) any Contract providing for warranty or indemnity terms obligating the Company with respect to its services or its business (other than indemnification provisions in standard commercial contracts entered into in the ordinary course of business); (xx) any power of attorney or other similar agreement or grant of agency; (xxi) any Contract prohibiting the Company from freely engaging in any business or competing anywhere in the world or providing for exclusivity to any customer or in any business line, geographic area or otherwise (excluding Contracts containing confidentiality obligations entered into in the ordinary course of business); (xxii) any Contract containing any requirements supply or exclusivity provision or “take or pay” provision or any “most-favored nation”, “most favored pricing” or similar clause in favor of any Person other than the Company; (xxiii) any settlement agreement involving the Company with obligations on the Company that will continue beyond Closing; (xxiv) any Contract granting any rights of first refusal, rights of first negotiation or similar rights to any Person; (xxv) any Contract with any payroll or human resources companies; and (xxvi) any standalone indemnification Contract. (b) The Company has made available to Purchaser a complete copy of each Material Contract that has been reduced to writing and a written description of any oral Material Contract. With respect to each such Material Contract, neither the Company nor, to the Company’s Knowledge, any other party to the Material Contract is in breach or default of any provision of any Material Contract in any material respect. The Company has not provided or received any written, or to the Company’s Knowledge oral notice, of any intention to terminate any Material Contract, and no event or circumstance has occurred that, with notice or lapse of time or both, would constitute a breach or a


 
44 US-DOCS\157178066.13 event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other change of any right or obligation or the loss of any benefit thereunder, in each case, except as would not reasonably be expected to, individually or in the aggregate, have a materially adverse impact on the Company. Each Material Contract is enforceable as to the Company and, to the Company’s Knowledge, as to each other party, in accordance with its terms except to the extent it has previously expired in accordance with its terms and subject to (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. Section 3.12 Governmental Authorizations. The Company has obtained and held, and during the past five (5) years has held and maintained, all Governmental Authorizations necessary to own, use and occupy, as applicable, its assets, and operate its business, in material compliance with Laws and (a) each such Governmental Authorization is valid and in full force and effect, (b) the Company is in material compliance with the terms and requirements of each such Governmental Authorization, and (c) there are no pending or, to the Knowledge of the Company, threatened Proceedings that would reasonably be expected to result in the revocation or termination of any such Governmental Authorization held by the Company, and the Company has not received, at any time during the past five (5) years) any written notice from any Governmental Authority regarding any actual or potential violation of or failure to comply with any term or requirement of any Governmental Authorization or any actual or potential revocation, withdrawal, suspension, cancellation, termination of or modification to any Governmental Authorization. None of such material Governmental Authorizations will expire or terminate as a result of the consummation of the transactions contemplated by this Agreement. Section 3.13 Compliance with Laws. (a) The Company is currently, and has been during the past five (5) years, in compliance in all material respects with all applicable Laws. During the past five (5) years, the Company has not received any written or, to the Company’s Knowledge, any oral claim regarding any material violation by the Company of, or any Liability or investigatory obligation of the Company under, any applicable Law, or any other notice of any completed, pending or potential investigation by any Governmental Authority regarding a material violation of applicable Law by the Company. (b) Except as would not reasonably be likely to be, either individually or in the aggregate, material to the Company, the Company has during the past five (5) years (i) complied with and is not in default or violation under any applicable Laws of any Governmental Authority applicable to the Company or the products or services provided by the Company, including the FFIEC and any federal or state bank regulatory authority. (c) The Company has, during the past five (5) years, complied in all material respects with and is not in material default or material violation under the Payment Card Industry Data Security Standard (PCI-DSS) issued by the Payment Card Industry Security Standards Council, as may be revised from time to time. Section 3.14 Tax Matters. Except as set forth in Section 3.14 of the Company Disclosure Schedule: (a) The Company has timely (taking into account applicable extensions of time to file) filed all income and other material Tax Returns which are required to be filed by the Company. All Taxes due and owing by the Company (whether or not shown as due on any Tax Return) have been


 
45 US-DOCS\157178066.13 timely and fully paid to the appropriate Governmental Authorities. All such Tax Returns are true, correct and complete in all material respects and have been prepared in compliance with applicable Law in all material respects. The Company has not requested or been granted any extension of time within which to file any Tax Return that has not yet been filed (other than any automatic extensions or extensions obtained in the ordinary course of business). All income and other material Taxes which the Company is obligated to withhold from amounts owing to any employee, creditor or third party have been properly withheld and fully paid or properly accrued and all information returns (including, for the avoidance of doubt, IRS Forms W-2 and Forms 1099) and other material documents required with respect to such withholding and remittances have been properly and timely filed and maintained. (b) The Company has properly (i) collected and remitted all material amounts of sales, use, ad valorem, value added, and similar Taxes and (ii) for all material sales that are exempt from sales and similar Taxes and that were made without charging or remitting sales or similar Taxes, received and retained any appropriate Tax exemption certificates and other documentation qualifying such sale as exempt. (c) No deficiency or proposed adjustment, which has not been paid or resolved for any amount of Tax, has been asserted or assessed by any Governmental Authority against the Company. The Company has not consented to extend the time in which any Tax may be assessed or collected by any Governmental Authority, which extension is still in effect (other than any automatic extensions or extensions which arose in connection with extensions of time to file Tax Returns obtained in the ordinary course of business). There are no ongoing Tax audits against the Company by any Governmental Authority nor has the Company received any written notice (or, to the Company’s Knowledge, any other notice) from any Governmental Authority that it intends to conduct such a Tax audit. The Company is not a party to or bound by, or has any obligation under any Tax allocation, sharing, indemnity or similar agreement or arrangement (other than any such agreement or arrangement a principal purpose of which is not the sharing or allocation of or indemnification for Taxes). (d) There are no Encumbrances on the assets of the Company relating to or attributable to Taxes, other than Encumbrances for current taxes not yet due and payable. (e) The Company has never been a member of an affiliated, consolidated, combined, unitary or similar group of corporations or included in a combined, consolidated or unitary Tax Return. The Company does not have any liability for the Taxes of any Person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of federal, state, local or non-U.S. Tax Law), as a transferee or successor, by contract, or otherwise. (f) The Company is not a party to any agreement, contract, arrangement or plan that has resulted or would result, separately or in the aggregate, in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code (without regard to Sections 280G(b)(4) and 280G(b)(5) of the Code) (or any corresponding or similar provision of state, local, or non-U.S. Law). (g) The Company is not a party to any joint venture, partnership or other arrangement or contract which is reasonably expected to be treated as a partnership for federal income tax purposes. (h) No written claim has ever been made to the Company by a Governmental Authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to Tax by that jurisdiction or required to file a Tax Return in that jurisdiction which claim has not since been satisfied by payment or been withdrawn.


 
46 US-DOCS\157178066.13 (i) The Company is not, and has never been, subject to Tax in any jurisdiction outside the United States. (j) The Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. (k) The Company has not participated in or been a party to any “reportable transaction” as set forth in Treasury Regulation Section 1.6011-4(b). (l) Within the past two (2) years, the Company has not distributed stock of any Person, or has had its stock distributed by any Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code. (m) The Company will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Post-Closing Tax Period as a result of any (i) change in a method of accounting for a Pre-Closing Tax Period, including through the application of Section 481(a) or Section 263A of the Code (or any corresponding or similar provisions of state, local, or non-U.S. Law), (ii) use of an improper method of accounting for a Pre-Closing Tax Period, (iii) “closing agreement” pursuant to Section 7121 of the Code (or any corresponding or similar provision of state, local, or non-U.S. Law) entered into prior to the Closing or any similar agreement that could have a continuing effect with respect to any Post-Closing Tax Period, (iv) installment sale or “open transaction” disposition made on or prior to the Closing, (v) deferred revenue or prepaid amount received on or prior to the Closing (other than in the ordinary course of business), (vi) “deferred intercompany gain” or “excess loss account” described in Treasury Regulations under Section 1502 of the Code (or corresponding or similar provision of state, local, or non-U.S. Law), (vii) inclusion under Section 965(a) of the Code or any election under Section 965(h) or Section 965(i) of the Code, or (viii) inclusion pursuant to Section 951 or Section 951A of the Code with respect to any interest held in a “controlled foreign corporation” (as that term is defined in Section 957 of the Code) in any Pre-Closing Tax Period. (n) The Company has never requested or received a private letter ruling or other similar ruling from any Governmental Authority. The Company has not filed, nor does the Company have any present intent to file, any ruling requests with any taxing authority, including any request to change any accounting method. (o) All related party transactions involving the Company have been conducted at arm’s length in compliance with Section 482 of the Code and the Treasury Regulations promulgated thereunder (and any corresponding or similar provision of state, local, or non-U.S. Law) and the Company has maintained documentation in connection with such related party transactions in accordance with Section 482 of the Code (and any corresponding or similar provision of state, local, or non-U.S. Law). The Company is not a party to any cost-sharing agreement or similar arrangement. (p) The Company has not made an election to defer any portion of any payroll, social security, unemployment, withholding Taxes or other Taxes pursuant to the CARES Act, or any similar election under any applicable Law.


 
47 US-DOCS\157178066.13 (q) The Company is (and has been at all times since its formation) properly classified as a corporation for U.S. federal income Tax purposes and has comparable status under the applicable Laws of any state or local jurisdiction in which it is required to file any Tax Return. (r) The Company has not been a United States real property holding corporation with the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. (s) The Company is not subject to a gain recognition agreement under Code Section 367 of the Code. (t) Each person providing services to the Company has been properly classified as an employee or independent contractor, as the case may be, for all Tax purposes and with respect to all Company Plans. Section 3.15 Employee Benefit Matters. Except as set forth in Section 3.15 of the Company Disclosure Schedule: (a) Section 3.15(a) of the Company Disclosure Schedule sets forth an accurate and complete list of all Company Plans (excluding individual offer letters, consulting and independent contractor agreements or individual Option Agreements, in each case, which are substantially on the form(s) made available to Purchaser and set forth on Schedule 3.15(a)). To the extent applicable, the Company has made available to Purchaser a current and complete copy of (i) each Company Plan that has been reduced to writing and a written summary of each Company Plan that has not been reduced to writing and the related trust agreement, (ii) each summary plan description and summary of material modifications thereto, (iii) the Form 5500 filed in each of the most recent plan year with respect to the Company Plan, (iv) the Form 1094 and Forms 1095 filed in each of the most recent three (3) years, (v) with respect to each Company Plan intended to be qualified under Section 401(a) of the Code (a “Qualified Plan”), the most recent determination or opinion letter issued by the IRS for each such Qualified Plan or upon which such Qualified Plan relies upon, and (vi) any material and non-routine correspondence with any Governmental Authority. (b) The Company has performed all of its obligations under each Company Plan, and each Company Plan (and to the Company’s Knowledge, each PEO Benefit Plan) has been maintained and administered, in accordance with the terms of such Company Plan and in compliance with the currently applicable provisions of ERISA, the Code and any other applicable law, in each case, in all material respects. Each Qualified Plan has received or may rely upon a current favorable determination, advisory or opinion letter from the IRS that it is qualified under Section 401(a) of the Code, and to the Company’s Knowledge, no event or circumstance exists which would reasonably be expected to result in the loss of the qualified status of such Qualified Plan. With respect to each Company Plan that is a “group health plan” within the meaning of Section 607 of ERISA and that is subject to Section 4980B of the Code, the Company has complied in all material respects with the continuation coverage requirements of Sections 601 et seq. of ERISA, Section 4980B of the Code (“COBRA”), with respect to their employees (and their eligible dependents), as well as the requirements of the Health Insurance Portability and Accountability Act of 1996 and the rules and regulations promulgated thereunder, and the Patient Protection and Affordable Care Act of 2010, and the rules and regulations promulgated thereunder. No event or circumstance exists which would result in a material tax, penalty or other Liability to the Company under Code Sections 4980B, 4980D, 4980G, 4980H, or 5000 with respect to any Company Plan. All material contributions and other payments required to be made by the


 
48 US-DOCS\157178066.13 Company to each Company Plan with respect to any period ending before, at or including the Closing Date have been made or, to the extent required, reserves adequate for such contributions or other payments have been or will be set aside therefor and have been or will be reflected in the Financial Statements to the extent required. (c) The Company does not maintain nor is obligated to provide benefits under, or has any Liability with respect to, any life, medical or health plan (other than as an incidental benefit under a Qualified Plan) which provides benefits to retirees or other terminated employees other than benefit continuation rights under COBRA or any other applicable Law. (d) Neither the Company nor any ERISA Affiliate has ever sponsored, maintained, participated in or contributed to (or been obligated to sponsor, maintain, participate in or contribute to), or has any Liability under or with respect to: (i) any “employee benefit plan” (within the meaning of Section 3(3) of ERISA) that was subject to Title IV of ERISA or Section 412 of the Code; (ii) Sections 302 or 303 of ERISA; (iii) Sections 430 or 4971 of the Code; (iv) any “multiemployer plan”, as that term is defined in Section 4001 of ERISA; or (v) any “multiple employer plan” within the meaning of Code Section 413. No Company Plan is a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. (e) There are no pending, or, to the Company’s Knowledge, threatened, claims against, by or on behalf of, the Company Plan, or by any Person covered thereby (and in such capacity), other than ordinary claims for benefits submitted by participants or beneficiaries, which are being adjudicated in accordance with the applicable Company Plan and applicable Law. (f) Each Company Plan (or in the case of any PEO Benefit Plan, the Company’s participation in such PEO Benefit Plan) can be terminated without payment of any additional material contribution or amount and, except for any vesting of benefits of a Qualified Plan, without the vesting or acceleration of any benefits promised by such Company Plan and without any penalty, cost, expense or Liability to the Company, any of their respective Subsidiaries or Affiliates, or such Company Plan (including any surrender charge, market rate adjustment or other early termination charge or penalty), other than reasonable expenses of the type typically incurred in the termination of similar employee benefit plans or withdrawal from similar PEO-sponsored benefit plans. (g) No Company Plan, or, to the Company’s knowledge, any trustee, administrator, employee or “fiduciary” thereof (in such capacity) has engaged in any breach of fiduciary duty or any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which could reasonably be expected to subject any such Company Plan, trustee, administrator, employee or fiduciary thereof (in such capacity), or any party dealing with any such Company Plan, to a material Tax or penalty on prohibited transactions imposed by Section 4975 of the Code or Section 502 of ERISA, or other Liability. (h) Each Company Plan that is a “non-qualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) and any award thereunder, in each case, that is subject to Section 409A of the Code, has been in compliance in all material respects with Section 409A of the Code to the extent required by applicable guidance, and the Company does not have any obligation to indemnify any individual for any additional taxes imposed under Section 409A of the Code. (i) Except as expressly provided in this Agreement or as set forth on Section 3.15(h) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the


 
49 US-DOCS\157178066.13 consummation of the transactions contemplated hereby will (standing alone or in conjunction with other occurrences) (i) result in any compensatory payment becoming due from the Company to any current or former officer, partner, contractor or employee of the Company, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment or vesting of any benefits under any Company Plan, or (iv) result in any excise tax under Section 4999 of the Code or any loss of deduction under Section 280G of the Code (without regard to Sections 280G(b)(4) and 280G(b)(5) of the Code) (or any corresponding provision of state, local or non-U.S. Tax Law) with respect to payments or benefits under any Company Plan. No Company Plan provides for the gross-up of any Taxes imposed by Section 4999 of the Code. Section 3.16 Employment and Labor Matters. (a) Section 3.16(a) of the Company Disclosure Schedule contains a list of all current employees of the Company as of the date hereof, and for each such employee, their (i) position title; (ii) hire date; (iii) base salary or base hourly rate; (iv) incentive compensation opportunity; (iv) exemption status for purposes of applicable wage and hour Law; and (v) work location. Each employee of the Company is employed on an at-will basis, and, except as described in Section 3.16(a) of the Company Disclosure Schedule, the Company can terminate the employment of each such employee for any lawful reason without advance notice and without payment of severance or early termination fee. (b) Section 3.16(b) of the Company Disclosure Schedule contains a list of all current individual independent contractors of the Company as of the date hereof, and for each such independent contractor, their (i) date of engagement; (ii) services performed; (iii) compensation arrangement; and (iv) work location. (c) The Company is not a party to, bound by, or negotiating with respect to any collective bargaining agreement or other Contract with a labor union or labor organization, and no petition has been filed or Proceedings instituted by any employee or group of employees of the Company (in such capacity) or labor union or labor organization with any labor relations board seeking recognition of a bargaining representative with respect to employees of the Company. To the Knowledge of Company, there is no organizational effort currently being made or threatened by or on behalf of any labor union or labor organization to organize any employees of the Company. There is no labor strike, picketing, slowdown, lockout, employee grievance process or other work stoppage or labor dispute pending or, to the Company’s Knowledge, threatened between the Company, on the one hand, and any of its employees, on the other hand. (d) During the past five (5) years, the Company has been in compliance in all material respects with all applicable Laws pertaining to labor, employment and employment practices, including all such Laws relating to immigration, health and safety, fair employment practices, equal employment opportunities, prohibited discrimination, retaliation, or harassment, wage and hour law, classification of employees as exempt, non-exempt and/or independent contractors, background checks, and other similar employment activities. There are no Proceedings filed, or to the Company’s Knowledge, threatened to be filed, by or before any Governmental Authority in connection with or otherwise relating to the employment, termination of employment of, failure to employ, failure to pay or classify an employee properly or any other employment action taken in relation to any individual and, during the past five (5) years, no such Proceedings have been brought or filed against the Company. Section 3.17 Environmental Matters.


 
50 US-DOCS\157178066.13 (a) The Company is in compliance with all applicable Environmental Laws in all material respects. (b) During the past five (5) years, the Company has not received any written notice or claim stating that the conduct of its business or the condition of any of the Leased Real Property is currently in violation of any Environmental Law in any material respect. (c) During the past five (5) years, the Company has not received any written notice or claim to the effect that it is or may be liable to any Person (including any Governmental Authority) as a result of the Release of a Hazardous Material. (d) No Proceeding is pending or, to the Company’s Knowledge, threatened against the Company that alleges a material violation by the Company of any applicable Environmental Laws. (e) To the Company’s Knowledge: (i) there is and has been no Release of Hazardous Materials nor any clean-up or corrective action of any kind relating thereto on any properties (including any buildings, structures, improvements, soils and surface, subsurface and ground waters thereof) currently or formerly owned, leased or operated by or for the Company or at any other location with respect to which the Company may be liable; (ii) no underground improvement, including any treatment or storage tank or water, gas or oil well, is or has been located on any property on which the Company operates or has operated; and (iii) the Company is not liable for any Release of or contamination by Hazardous Materials or otherwise under any Environmental Law. Section 3.18 Data Security and Privacy. (a) The Information Systems are sufficient for the conduct of its business as currently conducted by the Company. (b) During the past five (5) years, the Company has implemented and maintained a comprehensive information security program consisting of commercially reasonable administrative, technical and physical measures to (i) protect and maintain the security, operation and integrity of Company Information and all Information Systems in a manner consistent with applicable industry standard practices and in compliance in all material respects with Data Protection Laws and; (ii) protect against any anticipated threats or hazards to the security, confidentiality or integrity of Company Information and Information Systems; and (iii) detect and remediate Information Security Incidents. (c) During the past five (5) years, the Company has implemented and maintained commercially reasonable administrative, technical and physical measures to monitor for, detect and remediate malware, security vulnerabilities and security control deficiencies on Information Systems in a timely manner and in accordance with industry standard practices, which has included (i) installing, running and maintaining anti-malware software and other security tools on all Information Systems designed to detect and block malware; (ii) conducting penetration testing of all public-facing or critical Information Systems used to operate the Company’s services on at least an annual basis and in accordance with an industry standard methodology, (iii) conducting vulnerability scanning on all Information Systems at least a quarterly basis and in accordance with industry standard practices, and (iv) implementing policies, procedures and technical measures to routinely identify and install software security patches and security updates on all Information Systems to ensure the timely remediation of material, critical or high-risk security vulnerabilities in accordance with industry standard practices. The Company has fully remediated any and all material, critical or high-risk security vulnerabilities on


 
51 US-DOCS\157178066.13 Information Systems for which the Company has or should reasonably have become aware of in the past five (5) years. During the past five (5) years, there have been no unauthorized intrusions or breaches of the security of Information Systems. (d) During the past five (5) years, there has been no material Information Security Incident involving (i) Company Information or Information Systems in the possession, custody or control of the Company, or (ii) to the Company’s Knowledge, Company Information or Information Systems maintained by a third party for or on behalf of the Company. During the past five (5) years, the Company has contractually required all third parties processing Company Information for or on behalf of the Company to comply with all applicable Data Protection Laws and Data Protection Commitments applicable to the Company Information processed by the applicable third party, and to take commercially reasonable steps to ensure that all Company Information in such third parties’ possession or control is protected against damage, loss, and against unauthorized access, acquisition, use, modification, disclosure or other misuse (including Information Security Incidents). (e) The Company is currently, and has been during the past five (5) years, in compliance in all material respects with all Data Protection Laws and Data Protection Commitments. The Company has delivered to Purchaser accurate and complete copies of all material relevant Data Protection Commitments. (f) The Company has implemented written policies and procedures relating to the processing of Company Information, including a publicly posted privacy policy and a comprehensive information security program that includes appropriate written information security policies and procedures (“Data Protection Policies”). During the past five (5) years, the Company has provided notifications to, and has obtained consent from, Persons regarding its processing of Personal Information to the extent required by Data Protection Laws. Neither the execution, delivery, or performance of this Agreement, nor the consummation of any of the transactions contemplated under this Agreement will violate any Data Protection Law, Data Protection Commitment, or Data Protection Policy in any material respect. (g) There is no pending, nor has there been during the past five (5) years, any complaint, audit, proceeding, or claim, or, to the Company’s Knowledge, any investigation, against the Company initiated by (i) any Person or entity; (ii) the United States Federal Trade Commission, any state attorney general or similar state official; (iii) any other Governmental Authority; or (iv) any regulatory or self- regulatory entity alleging that any processing of Company Information of the Company: (A) is in violation of any applicable Data Protection Laws, (B) is in violation of any Data Protection Commitments, or (C) otherwise constitutes an unfair, deceptive, misleading or abusive trade practice. (h) The Company has taken commercially reasonable steps (including implementing, maintaining and complying with applicable industry standard measures with respect to administrative, technical and physical security) to ensure that Company Information in its possession or control is protected against Information Security Incidents. During the past five (5) years, there has been no material Information Security Incidents regarding Company Information in the possession or control of the Company or to the Company’s Knowledge, any of its contractors with regard to any Company Information obtained from or on behalf of the Company, nor has there been any material unauthorized intrusions or breaches of security into any Information Systems. The Company contractually requires all third parties, including vendors, affiliates, and other persons providing services to the Company that have access to or receive Company Information from or on behalf of the Company to comply with all applicable Data Protection Laws, and to take commercially reasonable steps to ensure that all Company


 
52 US-DOCS\157178066.13 Information of the Company in such third parties’ possession or control is protected against Information Security Incidents. (i) The Information Systems are maintained substantially in accordance with standards set by the manufacturers and in accordance with generally accepted industry standards to ensure proper operation, monitoring and use. The Information Systems are free of any material defects, bugs and errors and are protected by industry standard measures designed to detect and remove any disabling software, code or instructions, spyware, Trojan horses, worms, viruses, or other software routines that permit or cause unauthorized access to, or disruption, impairment, disablement or destruction of, any software, data or other materials (“Contaminants”). The Company has taken necessary steps reasonably required to ensure that the Information Systems are free from Contaminants and to safeguard the confidentiality, availability, security and integrity of the Information Systems, including implementing and maintaining commercially reasonable backup, data storage, system redundancy, business continuity and disaster recovery policies, procedures, and controls. (j) During the past five (5) years, the Company has not received any notice from any customer that the results of an audit or inspection of the Company by customer or its representatives has identified critical or high risk findings with respect to the Company’s IT program, compliance with customer agreements, or applicable Law. No Person or Governmental Authority has made any written claim or commenced any legal or regulatory action, lawsuit, investigation or other Proceedings against the Company with respect to any Information Security Incident or actual or alleged violation of a Data Protection Law or Data Protection Commitment. There are no unresolved material findings from any customer audit. Section 3.19 Compliance with Anti-Bribery and Corrupt Practice Laws. (a) Neither the Company or any of its officers or, to the Company’s Knowledge, employees is subject to any cease-and-desist or other similar order or enforcement action issued by, or is a party to any consent agreement or memorandum of understanding or other similar written agreement with, any regulatory agency or other Governmental Authority or has been during the past five (5) years, ordered to pay any civil money penalty by any regulatory agency or other Governmental Authority. During the past five (5) years, the Company has not adopted any policies, procedures or board resolutions at the request of any regulatory agency or other Governmental Authority that (i) materially restricts the conduct of its business or that in any material manner relates to its ability to pay dividends, its risk management policies, its management or its business or (ii) would be reasonably likely to prevent or materially impair the ability of Purchaser or its Affiliates to consummate the transactions contemplated by this Agreement. During the past five (5) years, neither the Company or any of its officers or, to the Company’s Knowledge, employees, has been advised in writing, or, to the Knowledge of the Company, orally by any regulatory agency or other Governmental Authority that it is considering issuing, initiating, ordering, or requesting any such regulatory agreement. (b) Neither the Company nor any of the Company’s directors, officers, nor, to the Company’s Knowledge, the Company’s other employees, agents or other representatives acting on behalf of the Company (i) has violated, has caused other Persons to be in violation of or is currently violating, the Foreign Corrupt Practices Act or any other trade laws; (ii) has directly or indirectly (through other Persons) paid, provided, promised, offered, or authorized the unlawful payment or provision of money, a financial advantage, favor, or anything else of value to a governmental official or any other Person for purposes of obtaining, retaining, or directing permits, licenses, favorable tax or duty decisions, court decisions, special concessions, contracts, business, or any other improper


 
53 US-DOCS\157178066.13 advantage; (iii) has otherwise offered, promised, authorized, provided, or incurred any bribe, kickback or other unlawful payment, expense, contribution, gift, gratuity, favor, entertainment, travel or other benefit or advantage to or for the benefit of any governmental official or other Person whether in the public or private sector; (iv) has solicited, accepted, or received any bribe, kickback or other unlawful payment, expense, contribution, gift, gratuity, favor, entertainment, travel or similar benefit from any Person in violation of applicable Law; (v) has established or maintained any slush fund or other unlawful, unrecorded, or off-the-books fund or account; (vi) has inserted, concealed, or misrepresented illegal, fraudulent, false, or improper payments, expenses, or other entries in the books and records of the Company; (vii) has laundered, concealed, or disguised the existence, illegal origins, and/or illegal application of, criminally derived income/assets or otherwise caused such income or assets to appear to have legitimate origins or constitute legitimate assets; or (viii) has used or dealt with funds or proceeds derived from illegal activities such as corruption, fraud, embezzlement, drug trafficking, arms smuggling, organized crime, or terrorism, including to finance any such illegal activities. Section 3.20 Legal Proceedings. Except as set forth in Section 3.20 of the Company Disclosure Schedule, there is not now, nor has there been during the past five (5) years, any Proceeding or Judgment pending or, to the Knowledge of the Company, threatened against the Company or relating to its business or assets (or, to the Knowledge of the Company, threatened against any of the Affiliates, officers, directors, or senior management level employees of the Company or holders of more than five percent (5%) of the outstanding Company Equity Securities (solely in any such holder’s capacity as such)), or to which the Company is otherwise a party, before any Governmental Authority. The Company is not subject to, and its business and assets are not bound by, any Judgment or decree of any Governmental Authority. The Company is not engaged in any legal action to recover monies due it or for damages sustained by it. Except as set forth in Section 3.20 of the Company Disclosure Schedule, (i) there is no, and during the past five (5) years there has not been any, Proceeding pending or threatened by the Company or, to the Company’s Knowledge, any of its Affiliates against any third party or customer, vendor or other material business relationship of the Company relating to the business of the Company and (ii) to the Knowledge of the Company, no event has occurred or circumstance exists as of the date hereof that would reasonably be expected to give rise to or serve as the basis for the commencement of any such Proceeding. Section 3.21 Affiliate Transactions. Except as set forth in Section 3.21 of the Company Disclosure Schedule and Contracts relating to labor and employment included in Section 3.16 of the Company Disclosure Schedule, no executive officer of the Company, director of the Company or Company Stockholder: (a) owns or possesses the right to acquire any material property or right, whether tangible or intangible, which is used by or useful in the business and operations of the Company; (b) with respect to any executive officer, director or Company Stockholder that holds more than five (5%) or more of the Common Stock and Preferred Stock, has any claim or cause of action against the Company; (c) owes any money to the Company or is owed any money from the Company (except for amounts owed to executive officers or directors of the Company for services provided and business expense reimbursement, in each case, in the ordinary course of business, none of which are material to the Company); (d) is a party to any Contract with the Company; (e) is an Affiliate of any material vendor, supplier, distributor, customer or other material business relationship of the Company; or (f) with respect to any executive officer of the Company, has any material interest, directly or indirectly, in any business (regardless of form or structure), which is in competition with the Company. Section 3.22 Customers and Suppliers.


 
54 US-DOCS\157178066.13 (a) Section 3.22(a) of the Company Disclosure Schedule sets forth the Company’s twenty- five (25) largest customers, by revenue (including deferred revenue), during the period beginning January 1, 2024 and ending on December 31, 2024 (each a “Material Customer”) and sets forth opposite the name of each such customer the dollar amount of sales attributable by the Company to such customer for such period. The Company is not engaged in any material dispute with any Material Customer. Except as set forth on Section 3.22(a) of the Company Disclosure Schedule, during the past twelve (12) months, no Material Customer has (i) notified Company or, to the Company’s Knowledge, indicated to the Company that it intends to terminate or materially reduce its purchases from the Company, (ii) cancelled or otherwise terminated its relationship with the Company, or (iii) materially decreased or threatened to materially decrease its purchases from the Company. The Company does not provide any special rebate, discount, or similar programs (whether or not in writing), including any below market rates, to any Material Customers. (b) Section 3.22(b) of the Company Disclosure Schedule sets forth the Company’s five (5) largest vendors, by dollar volume, during the period January 1, 2024 and ending on December 31, 2024 (each a “Material Supplier”) and sets forth opposite the name of each such vendor the dollar amount of purchases by the Company attributable to such vendor for such period. The Company is not engaged in any material dispute with any Material Supplier. Except as set forth on Section 3.22(b) of the Company Disclosure Schedule, no Material Supplier has (i) notified the Company or, to the Company’s Knowledge, indicated to the Company that it intends to terminate or materially reduce its business relations with the Company, (ii) cancelled or otherwise terminated its relationship with the Company, (iii) materially decreased or threatened to materially decrease its supplies to, the Company, or (iv) materially increased or threatened to materially increase pricing terms with respect to goods or services sold to the Company. Section 3.23 Insurance. Section 3.23 of the Company Disclosure Schedule is a correct and complete list as of the date hereof, including policy number, coverage and amount insured, of all insurance policies for the benefit of the Company. True and complete copies of such insurance policies have been made available to Purchaser or its representatives. All premiums due on such policies have been paid and there exists no breach by the insured under any such policy which gives the insurer the right thereunder to terminate such policy. As of the date hereof, the Company has not received any written notice of cancellation of or intent to cancel any of the policies or of increase or intent to increase the premiums for such policies or materially adversely amending any such policy or denying renewal of coverage thereunder. The Company does not have any self-insurance or co-insurance program (other than the deductibles listed under such policies). Except as set forth in Section 3.23 of the Company Disclosure Schedule (i) each such policy is in full force and effect, (ii) there is no claim by the Company pending under any of such policies as to which coverage has been denied by the underwriters of such policies or in respect of which such underwriters have reserved their rights and (iii) there is no claim by any third party pending or, to the Knowledge of the Company, threatened against the Company or its Affiliates which would reasonably be expected to exhaust the coverage limits under any such policy. Section 3.24 Banks; Power of Attorney. Section 3.24 of the Company Disclosure Schedule sets forth a complete list of the names and locations of all banks in which the Company has accounts or safe deposit boxes. Except as set forth in Section 3.24 of the Company Disclosure Schedule, no Person holds a power of attorney to act on behalf of the Company. Section 3.25 Brokers Fees. The Company has not incurred any Liability to pay any fees or commissions to any broker, finder or agent in connection with any of the transactions contemplated by


 
55 US-DOCS\157178066.13 this Agreement, and any such Liability shall either be paid by the Company out of available cash prior to Closing, included within the Transaction Expenses or otherwise paid after the Closing pursuant to an arrangement reasonably satisfactory to Purchaser. Section 3.26 Cares Act. The Company did not apply for any loan under the CARES Act from any Person or receive any relief or benefits under the Paycheck Protection Program of the U.S. Small Business Administration as set forth in the CARES Act. Section 3.27 Warranty Obligations. Other than warranties included in client contracts in the ordinary course of business, the Company has no warranties, guarantees and written warranty policies of the Company in respect of any Company Products which are currently in effect. Section 3.28 Restrictions on Business Activities. Except as set forth on Section 3.11 of the Company Disclosure Schedule, there is no Contract or Judgment binding upon the Company that restricts or prohibits has or would reasonably be expected to have, whether before or after consummation of the Merger, the effect of prohibiting, restricting or impairing any current or presently proposed business practice of the Company in any material respect, any acquisition of property by the Company or the conduct or operation of the business of the Company or, excluding (a) restrictions on the use of third-party Intellectual Property contained in the applicable written license agreement therefor and (b) confidentiality obligations contained in Contracts entered into by the Company in the ordinary course of business, limiting the freedom of the Company to (a) engage or participate, or compete with any other Person, in any line of business, market or geographic area with respect to the Company products or the Company Intellectual Property, or to make use of any Company Intellectual Property, including any grants by the Company of exclusive rights or licenses or (b) sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services. Section 3.29 Books and Records. The books and records of the Company are complete and correct in all material respects, reflect actual, bona fide transactions and have at all times been maintained in accordance with the Company’s normal business practices in all material respects. Section 3.30 Disclaimer of Other Representations and Warranties. The representations and warranties made by the Company or the applicable Company Securityholders expressly set forth in this Article 3 (as modified by the Company Disclosure Schedule), the Company Closing Certificate or in any Ancillary Agreements (collectively, the “Seller Representations”) are the only representations and warranties made by Company, the Company Securityholders, their respective Affiliates, and each of their respective Representatives (collectively, the “Seller Related Parties”) with respect to the Company Securityholders, the Company Equity Securities, the Company, the Merger or any other matter relating to the transactions contemplated by this Agreement. Except as specifically set forth in the Seller Representations, none of the Seller Related Parties make or have made any representation or warranty, express or implied, at law or in equity, as to any matter whatsoever relating to the Company Securityholders, the Company Equity Securities, the Company, the Merger, or any other matter relating to the transactions contemplated by this Agreement, including as to (a) merchantability or fitness for any particular use or purpose, (b) the operation of the business of the Company before or after the Effective Time in any manner or (c) the probable success or profitability of the business of the Company before or after the Effective Time. Without limiting the Purchaser Indemnitees’ rights to indemnification under Article 8, (i) each of Purchaser and MergerSub acknowledges and agrees that no Seller Related Party has made any representation or warranty, express or implied, as to the accuracy or completeness of information regarding the Company, the Company Securityholders, the Company


 
56 US-DOCS\157178066.13 Equity Securities, the Company, the Merger, or any other matter relating to the transactions contemplated by this Agreement beyond the Seller Representations, and (ii) other than in the event of Fraud, no Seller Related Party will have or be subject to any Liability to Purchaser, MergerSub, their respective Affiliates (including the Surviving Company following the Closing) or any of their respective Representatives resulting from the distribution to Purchaser, MergerSub, their respective Affiliates or their respective Representatives, or any such Person’s use of, any such information, including (A) any confidential information memoranda and/or management presentations (including responses to any questions relating thereto), distributed on behalf of the Seller Related Parties relating to such matters, (B) documents or other publications provided to Purchaser or its Representatives in the Data Room, or any other document, information or projection in any form provided to Purchaser or its Representatives in connection with the transactions contemplated hereby, or (C) the pro-forma financial information, projections, or other forward-looking statements of the Company (or prepared on behalf of the Company), in each case, in expectation or furtherance of the transactions contemplated hereby. Each of Purchaser and MergerSub specifically disclaims that such party is relying upon any representations or warranties, except for the Seller Representations, that may have been made by any Person, and acknowledges and agrees that the Company (on behalf of itself and on behalf of the other Seller Related Parties) has specifically disclaimed and hereby specifically disclaims any such other representation or warranty. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGERSUB Purchaser and MergerSub jointly and severally represent and warrant to the Company, as of the date of this Agreement and as of the Closing Date, as follows: Section 4.1 Organization and Good Standing. Each of Purchaser and MergerSub is duly organized, validly existing and in good standing under the Laws of the state of its incorporation/formation and has all requisite power and authority to conduct its business as presently conducted. Purchaser owns all of the issued and outstanding capital stock of MergerSub free and clear of all Encumbrances. Section 4.2 Authority and Enforceability. Each of Purchaser and MergerSub has all requisite power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party and to perform its obligations under this Agreement and each such Ancillary Agreement. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which Purchaser and/or MergerSub is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of Purchaser and MergerSub. Each of Purchaser and Merger Sub has duly and validly executed and delivered this Agreement, and assuming that this Agreement and the Ancillary Agreements to which Purchaser and/or MergerSub is or will be a party constitute the valid and binding agreement of the other parties thereto, this Agreement constitutes, and at the Closing each Ancillary Agreement to which Purchaser and/or MergerSub is a party will constitute, the valid and binding obligation of Purchaser and MergerSub, enforceable against Purchaser and MergerSub in accordance with their respective terms, subject to (a) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (b) Laws governing specific performance, injunctive relief and other equitable remedies. Section 4.3 No Conflict. Except in any case that would not reasonably be expected to have a material adverse effect on the ability of Purchaser or MergerSub to perform its respective obligations under this Agreement or on the ability of Purchaser or MergerSub to consummate the transactions


 
57 US-DOCS\157178066.13 contemplated by this Agreement, neither Purchaser’s nor MergerSub’s execution, delivery and performance of this Agreement and any Ancillary Agreement to which either of them is a party, nor the consummation by Purchaser or MergerSub of the transactions contemplated hereby or thereby, will (a) conflict with or violate the Governing Documents of Purchaser or MergerSub, (b) result in a breach or default under or create in any Person the right terminate, cancel, accelerate or modify, or require any notice, consent or waiver under, any Contract to which Purchaser or MergerSub is a party or by which Purchaser or MergerSub is bound, in any case with or without due notice or lapse of time or both, or (c) result in the imposition of any Encumbrance (other than a Permitted Encumbrance) on any of the assets or properties of Purchaser or MergerSub. No consent of any Governmental Authority or any other Person is required by Purchaser or MergerSub in connection with the execution, delivery and performance of this Agreement and any Ancillary Agreement to which Purchaser and/or MergerSub is a party or the consummation by Purchaser and MergerSub of the transactions contemplated hereby or thereby, except for (i) the expiration or termination of the applicable waiting period under the HSR Act, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and (iii) such other consents or approvals, the absence or omission of which would not, individually or in the aggregate, reasonably be expected to materially impair the ability of Purchaser or MergerSub to perform its respective obligations under this Agreement or any Ancillary Agreement to which either of them is a party. Section 4.4 Legal Proceedings. There is no Proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser or MergerSub that questions or challenges the validity of this Agreement or that would reasonably be expected to prevent, delay, make illegal or otherwise interfere with the ability of Purchaser or MergerSub to consummate any of the transactions contemplated by this Agreement. Section 4.5 Investment Intent. Purchaser is acquiring the Company Stock pursuant to the Merger for Purchaser’s own account and investment purposes and is not acquiring the Company Stock with a view to, or for sale in connection with, any distribution thereof within the meaning of any federal or state securities Laws. Purchaser is an “accredited investor” within the meaning of Rule 501(a) of Regulation D as promulgated by the Securities and Exchange Commission under the Securities Act of 1933 (the “Securities Act”), and has sufficient business and financial knowledge and experience to protect its own interests and to evaluate the merits and risks in connection with the acquisition of the Company Stock. Section 4.6 Brokers Fees. Neither Purchaser nor any Person acting on its behalf has incurred any Liability to pay any fees or commissions to any broker, finder or agent in connection with any of the transactions contemplated by this Agreement. Section 4.7 Solvency. Immediately after giving effect to the consummation of the Merger, assuming the truth and accuracy of the representations and warranties contained in Article 3, each of Purchaser and the Surviving Company will be solvent and shall: (a) be able to pay its respective debts as they become due; (b) own property that has a fair saleable value greater than the amounts required to pay its debt (including a reasonable estimate of the amount of all contingent liabilities); and (c) not be left with an unreasonably small capital to carry on its business. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud either present or future creditors of Purchaser or its Affiliates. In connection with the transactions contemplated hereby, Purchaser has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.


 
58 US-DOCS\157178066.13 Section 4.8 Independent Investigation. Purchaser is a sophisticated investor, represented by independent legal and investment counsel with experience in the acquisition and valuation of ongoing businesses and acknowledges that it has received, or has had access to, all information which it considers necessary or advisable to enable it to make an informed investment decision concerning the Company, the Company Securityholders, the Company Equity Securities, the Merger and the other transactions contemplated hereby and by the Ancillary Agreements and, in making its determination to proceed with the transactions contemplated hereby, Purchaser and each of its Non-Recourse Parties have relied solely on the results of such independent investigation and on the Seller Representations. Purchaser hereby acknowledges and agrees that, except as specifically set forth in the Seller Representations, none of the Seller Related Parties make or have made any representation or warranty, express or implied, at law or in equity, as to any matter whatsoever relating to the Company Securityholders, the Company Equity Securities, the Company, the Merger or any other matter relating to the transactions contemplated by this Agreement, including as to (a) merchantability or fitness for any particular use or purpose, (b) the operation of the business of the Company before or after the Effective Time in any manner or (c) the probable success or profitability of the business of the Company before or after the Effective Time. Section 4.9 Disclaimer of Other Representations and Warranties. The representations and warranties set forth in this Article 4, the Purchaser Closing Certificate and in any Ancillary Agreements executed and delivered by Purchaser or MergerSub (collectively, the “Purchaser Representations”) are the only representations and warranties made by Purchaser and MergerSub with respect the matters relating to the transactions contemplated by this Agreement. Except as specifically set forth in the Purchaser Representations, none of Purchaser, MergerSub, any of their Affiliates, or any of their respective equity holders, directors, managers, officers, employees, agents or representatives make or have made any representation or warranty, express or implied, at law or in equity, as to any matter whatsoever relating to Purchaser, MergerSub or any other matter relating to the transactions contemplated by this Agreement. Without limiting the Seller Indemnitees’ rights to indemnification under Article 8, the Seller Related Parties acknowledge and agree that neither the Purchaser nor MergerSub has made any representation or warranty, express or implied, relating to the transactions contemplated by this Agreement beyond the Purchaser Representations. Each of the Seller Related Parties specifically disclaim that such party is relying upon any representations or warranties relating to the transactions, except for the Purchaser Representations, that may have been made by any Person, and acknowledges and agrees that the Purchaser and MergerSub have each specifically disclaimed and hereby specifically disclaim any such other representation or warranty (excluding the Purchaser Representations). ARTICLE 5 COVENANTS Section 5.1 Access and Investigation. From the date hereof and until earlier of the termination of this Agreement in accordance with Article 7 and the Closing and upon reasonable advance notice from Purchaser, the Company will allow Purchaser and its Representatives reasonable access to the books and records, properties, Contracts, Tax Returns and the officers and other key employees of the Company and the operations of its business, and shall furnish such Representatives with financial and operating data and other information concerning the affairs of the Company, in each case, as Purchaser or such Representatives may reasonably request for purposes of consummating the transactions contemplated by this Agreement and operating the business of the Company after the Closing; provided, however, that (a) such examinations and investigations shall not unreasonably


 
59 US-DOCS\157178066.13 interfere with the normal operations and activities of the Company, (b) Purchaser, its Affiliates and their respective Representatives shall not contact or otherwise communicate with the employees (other than the officers and other key employees pursuant to this Section 5.1), customers, or suppliers of the Company regarding the transactions contemplated hereby; provided, that the Company shall use commercially reasonable efforts to facilitate a reasonable number of meetings, at reasonable times and upon reasonable advance notice, between Purchaser and such employees as Purchaser may request from time to time, (c) Purchaser, its Affiliates and their respective Representatives shall have no right to perform any sampling, monitoring or testing other surface, subsurface or invasive investigation, assessment or analysis of soil, surface water, groundwater, air, building materials or other environmental media of the sort generally referred to as a Phase II environmental investigation, (d) such access or related activities would not reasonably be expected to cause a violation of any Law or Contract to which the Company is bound or jeopardize attorney/client privilege, work-product protection, or similar legal privilege applicable to the Company; provided, that the Company shall be permitted to and will use reasonable best efforts to redact any attorney-client privileged or otherwise sensitive information from any document that is otherwise required to be disclosed, and (e) the information or personnel subject to such access or related activities are not reasonably pertinent to any litigation between Purchaser and its Affiliates, on the one hand, and the Company and its Affiliates, on the other hand. For avoidance of doubt, any information obtained by or provided to Purchaser, its Affiliates or their respective Representatives pursuant to this Section 5.1 shall be subject to the Confidentiality Agreement. Section 5.2 Operation of the Businesses of the Company. (a) From the date hereof and until earlier of the termination of this Agreement in accordance with Article 7 and the Closing, except (i) as otherwise set forth or expressly permitted in this Agreement or the Ancillary Agreements, (ii) as required by applicable Law or as otherwise consented to by Purchaser in writing (which consent will not be unreasonably withheld, conditioned or delayed), the Company will use commercially reasonable efforts to (A) conduct its business in the ordinary course of business, and (B) keep available the services of its employees, and preserve its relationships with its customers, vendors, creditors and others doing business with the Company in all material respects. (b) From the date hereof and until earlier of the termination of this Agreement in accordance with Article 7 and the Closing, except as (i) otherwise expressly required or permitted by this Agreement or the Ancillary Agreements, (ii) required by applicable Law, (iii) described in Section 5.2(b) of the Company Disclosure Schedule, or (iv) otherwise consented to by Purchaser in writing (which consent will not be unreasonably withheld, conditioned or delayed), the Company will not: (i) amend its Governing Documents; (ii) issue, sell or pledge any equity interests of the Company or securities convertible into or exchangeable for any such equity interests, or any options, warrants or rights to acquire any such equity interests or other convertible or exchangeable securities; (iii) effect any recapitalization, reclassification, equity interest split, combination or like change in the capitalization of the Company, or amend the terms of any outstanding equity interests in the Company, or any options, warrants or rights to acquire any such equity interests or other convertible or exchangeable securities of the Company;


 
60 US-DOCS\157178066.13 (iv) purchase, redeem or otherwise acquire or cancel any outstanding equity interests, options, warrants, convertible or exchangeable securities or any other securities of, or other ownership interests in, the Company, other than repurchases or redemptions of Company Stock consummated prior to the Adjustment Time and reflected on the Securityholder Payment Schedule; (v) declare, set aside or pay any non-cash dividend or other non-cash distribution in respect of its equity interests (it being understood that nothing in this Agreement (including this Section 5.2) shall prohibit or preclude, and the Company is, to the extent permitted under applicable Law, hereby expressly permitted to, distribute available cash to the Company Securityholders prior to the Closing Date in accordance with its Governing Documents); (vi) (A) enter into any employment agreement with any employees providing for annual base compensation in excess of $100,000 or that cannot be terminated by the Company at-will without advance notice and without payment of severance or early termination fee, except to the extent such severance or early termination fee is in connection with the positions set forth on Section 5.2(b)(vi) of the Company Disclosure Schedule), (B) amend, modify or terminate any employment agreement existing on the date hereof, (C) except pursuant to any Contract or Company Plan existing on the date hereof and made available to Purchaser, make or grant any bonus or any wage, salary, or compensation increase to any employee or (D) materially amend, adopt or terminate any Company Plan; (vii) adopt a plan of liquidation, dissolution, merger, consolidation or other reorganization; (viii) change its accounting methods, principles or practices in any respect, other than as may be required by GAAP or applicable Law; (ix) enter into any Contract or other agreement with any labor union; (x) make any loans or advances of money to or investments in any Person, except for advances to employees or officers of the Company for expenses incurred in the ordinary course of business; (xi) make any commitment to pay severance or increase the amount of severance to be payable to any of its directors, officers, employees or consultants; (xii) make any capital expenditures in excess of $100,000 in any one case or $250,000 in the aggregate; (xiii) incur any indebtedness for borrowed money (excluding, for avoidance of doubt, current liabilities incurred in the ordinary course of business); (xiv) make any acquisition of all or any material part of the assets, properties, capital stock or business of any other Person; (xv) make any sale, transfer, lease, pledge, creation of any Encumbrance (other than Permitted Encumbrances) upon, license, assignment or other disposal of any of its material assets (other than in the ordinary course of business); (xvi) (A) make any material Tax election or change any material Tax election, (B) settle or compromise any material Tax liability, (C) file any material amendment to a Tax Return, (D) enter into


 
61 US-DOCS\157178066.13 any closing agreement, settlement of any claim or assessment in respect of Taxes, or (E) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (xvii) settle, waive, discharge, release or satisfy any claim, Liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) exceeding $250,000 individually or $500,000 in the aggregate; (xviii) change its cash management customs and practices in any material respect; (xix) accelerate collection of, or discount, accounts receivable or take any action or fail to take any commercially reasonable action, in each case outside the ordinary course of business, that has had, or would reasonably be expected to have, the effect of accelerating to pre-Closing periods sales to customers or others that would otherwise reasonably be expected to occur after the Closing; (xx) (A) terminate (other than expirations in accordance with the terms thereof), or materially amend or materially waive any of the Company’s rights under any Material Contract, or (B) enter into any Contract that would be a Material Contract if entered into prior to the date of this Agreement, except, in the case of the preceding clause (A), for extending such Contracts with customers on substantially similar terms, and in the case of the preceding clause (B), for entering into Contracts with new customers in the ordinary course of business; (xxi) purchase, sell, assign, transfer, license, lease, abandon or otherwise dispose of any material Intellectual Property, other than non-exclusive licenses granted in the ordinary course of business; (xxii) terminate any insurance policy, permit any insurance policy to lapse or amend any insurance policy in a manner that is materially adverse to the Company; (xxiii) revoke, amend, suspend or waive any provisions of or related to the Voting Agreement or, except as contemplated by Section 5.4(c), take any actions, or omit to take any actions, with respect to the Voting Agreement that could result in any of the provisions of Section 3.3 thereof not being complied with, such that a Stockholder (as defined therein) would not be required to comply with Section 3.2 thereof in connection with the Merger and the transactions contemplated by this Agreement; or (xxiv) agree in writing to take any of the foregoing actions. Section 5.3 No Negotiation. Until such time, if any, that this Agreement is terminated pursuant to Article 7, the Company will not, and shall cause its Representatives, and any of its controlled Affiliates to not, directly or indirectly, (a) solicit or encourage the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Purchaser and its Affiliates) relating to a possible Acquisition Transaction (as defined herein); (b) participate in any discussions or negotiations, or enter into any agreement with, provide any non-public information to, or provide access to the properties, books or records of the Company to any Person (other than Purchaser and its Affiliates) relating to or in connection with a possible Acquisition Transaction; or (c) accept any proposal or offer from any Person (other than Purchaser and its Affiliates) relating to a possible Acquisition Transaction; provided, that the Company and its authorized Representatives may respond to unsolicited offers and inquiries relating to a possible Acquisition Transaction from any such


 
62 US-DOCS\157178066.13 third parties as necessary to generally inform such third parties of the restrictions in this Section 5.3. The Company shall, and shall cause each of its Representatives and any of their Affiliates to, immediately discontinue any ongoing discussions or negotiations (other than any ongoing discussions with Purchaser and its Affiliates) relating to a possible Acquisition Transaction. The Company shall promptly notify Purchaser of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by the Company or by any of its Representatives or any of its or their Affiliates from any Person (other than Purchaser and its Affiliates) after the date hereof; provided, that such notice shall be the Company’s only obligation to Purchaser with respect to a possible Acquisition Transaction. “Acquisition Transaction” shall mean any transaction involving: (i) the sale, license, disposition or acquisition of 25% or more of the assets of the Company or the exclusive license of any of the Company’s Intellectual Property, or the incurrence of any Encumbrance (other than a Permitted Encumbrance) on assets of the Company; (ii) the Company’s issuance, grant, disposition or acquisition of (A) any equity securities of the Company (including debt securities that are convertible into or exercisable for equity securities of the Company), other than the issuance of equity securities pursuant to the exercise of existing stock options or warrants, the conversion of the Company’s preferred stock to common stock or the conversion of existing convertible debt instruments, (B) any option, call, warrant or right (whether or not immediately exercisable) to acquire any such equity or debt securities of the Company described in the preceding clause (A), or (C) any security, instrument or obligation that is or may become convertible into or exchangeable for equity securities of the Company described in the preceding clause (A); or (iii) a merger, consolidation, exchange of equity or equity-linked securities, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company. Section 5.4 Consents and Filings. (a) Subject to the terms and conditions provided in this Section 5.4, Purchaser and the Company each will use its respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement and to cooperate with each other in connection with the foregoing, including to: (i) obtain all Governmental Authorizations that are required to be obtained under applicable Law in order to consummate the transactions contemplated hereby; (ii) effect all necessary registrations and filings including filings and submissions of information requested or required by any Governmental Authority; and (iii) fulfill all conditions to this Agreement. In no event will the Company or Purchaser be obligated to pay any money to any Person, or to waive any condition to Closing contained in Section 6.1 or Section 6.2 of this Agreement (as applicable) in connection with its obligations under this Section 5.4. (b) Neither Purchaser nor the Company shall (i) participate in any substantive meeting or discussion with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance, and if permitted by the applicable Governmental Authority, allows the other party to participate, or (ii) consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority without the consent of the other. (c) As promptly as practicable, and in any event within two (2) hours, after the execution of this Agreement, the Company shall deliver to Purchaser an irrevocable written consent, in the form attached hereto as Exhibit E (the “Post-Signing Consent”), to adopt and approve this Agreement, the Merger and the other transactions contemplated by this Agreement in accordance with the DGCL, duly


 
63 US-DOCS\157178066.13 executed by (1) the Key Holders, (2) holders of a majority of the outstanding shares of Preferred Stock (each voting as a separate class on an as converted basis) and (3) holders of at least a majority of the aggregate issued and outstanding shares of Company Stock (on an as converted basis). Within five (5) Business Days after the execution of this Agreement, the Company shall prepare and deliver a notice (the “Stockholder Notice”) to any Company Stockholder that has not yet executed the Post-Signing Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company’s board of directors determined that the Merger is advisable in accordance with the DGCL and in the best interests of the Company Stockholders and has approved this Agreement, the Merger and the other transactions contemplated by this Agreement, (ii) provide the Company Stockholders to whom it is sent with notice of the actions taken in the Post-Signing Consent, including the approval and adoption of this Agreement, the Mergers and the other transactions contemplated by this Agreement in accordance with Section 228(e) of the DGCL and the Governing Documents of the Company, (iii) include a copy of Section 262 of the DGCL, notify such Company Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCL (and, if applicable, that such dissent and appraisal rights have been waived by such Company Stockholder pursuant to the Voting Agreement) and otherwise be sufficient in form and substance to start the twenty (20)-day period during which a Company Stockholder must demand appraisal as contemplated by Section 262(d)(2) of the DGCL, (iv) include a request that the Company Stockholders execute the Post-Signing Consent, and (v) include such other information as shall be required by applicable Law or as Purchaser may reasonably request. All materials submitted to the Company Stockholders in accordance with this Section 5.4(c) shall be subject to Purchaser’s advance review and reasonable approval. Notwithstanding anything herein to the contrary, in the event that the Company has not obtained the Requisite Stockholder Approval on or before March 31, 2025, the Company shall, if requested by Purchaser, exercise the drag-along rights contained in Section 3 and Section 4 of the Voting Agreement to the extent necessary to obtain the Requisite Stockholder Approval prior to the Outside Date by causing the Stockholders that have not previously signed the Post-Signing Consent to sign the Post-Signing Consent and otherwise comply with Section 3.2 thereof (it being understood that, to the extent any Company Stockholders bound by the Voting Agreement refuse to execute the Post-Signing Consent within five (5) Business Days of such request, the Company shall, solely to the extent necessary to obtain the Requisite Stockholder Approval, exercise its proxy rights and power of attorney under the Voting Agreement and execute the Post-Signing Consent on behalf of such Company Stockholders, as applicable). (d) In furtherance and not in limitation of Section 5.4(a), Purchaser and the Company have each filed, or caused their ‘ultimate parent entity’, as such term is defined in the HSR Act (herein referred to as the applicable party’s “UPE”) to file, with the appropriate Antitrust Authority the notification and other information required to be filed under the HSR Act with respect to the transactions contemplated by this Agreement. Purchaser and the Company will each use, and will cause their Affiliates, including their UPE to use, commercially reasonable efforts in connection with responding to any inquiries or requests in connection therewith. Purchaser and the Company will each furnish, and will cause their Affiliates, including their UPE to furnish, as promptly as reasonably practicable any supplemental information and documentary material that may be requested in connection therewith and will each take, and will cause their Affiliates, including their UPE to take, all other commercially reasonable action necessary or advisable to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as practicable. Purchaser and the Company will each furnish, and will cause their Affiliates, including their UPE to furnish, to the other party such necessary information and reasonable assistance as the other party, or their Affiliates, including their UPE, may reasonably request in connection with submissions which are necessary under the HSR Act. Purchaser and the Company will each keep, and will cause their Affiliates, including their UPE to keep,


 
64 US-DOCS\157178066.13 the other party, or their UPE, apprised of the status of any material communications with, and any material inquiries or material requests for additional information, from any Governmental Authority with whom a filing has been made pursuant to the HSR Act. If any objections are asserted with respect to the transactions contemplated hereby under the HSR Act or if any Proceeding is instituted or threatened by any Governmental Authority or any private party challenging any of the transactions contemplated by this Agreement as violative of the HSR Act, Purchaser and the Company will each use, and will cause their Affiliates, including their UPE to use, commercially reasonable efforts to promptly resolve such objections and/or avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement. (e) Purchaser shall not, without the written consent of the Company, “pull and refile” pursuant to 16 C.F.R. 803.12 any filing made under the HSR Act, or take any similar action (including entering into a timing agreement with any Antitrust Authority that would extend any statutory or other deadlines) without prior written approval from the Company with respect to any antitrust filing made with any Antitrust Authority pursuant to Section 5.4(d) or any other provision of this Agreement. (f) Purchaser and the Company shall each promptly furnish to the other copies of any notices or written communications received or given by Purchaser or any of its Affiliates, on the one hand, and the Company and its Affiliates, on the other hand, from or to any Governmental Authority with respect to the transactions contemplated by this Agreement, and Purchaser and the Company shall each permit counsel to the other an opportunity to review in advance, and Purchaser and the Company shall each consider in good faith the views of such counsel in connection with, any proposed written communications by Purchaser and its Affiliates, on the one hand, and the Company and its Affiliates, on the other hand, to any Governmental Authority concerning the transactions contemplated by this Agreement. Purchaser and the Company each agrees to provide the other and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by videoconference or telephone, between Purchaser, the Company and any of their Affiliates, agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the transactions contemplated hereby. Section 5.5 Confidentiality. Subject to Section 5.11 and as otherwise required by applicable Law or securities listing standards (in the reasonable opinion of counsel to the disclosing party) each party hereto (other than the Company Representative) agrees that it shall, and shall cause its Affiliates and such party’s and its Affiliates’ respective Representatives to, hold the terms of this Agreement in confidence in accordance with the terms of the Confidentiality Agreement. Except to the extent expressly permitted in the Confidentiality Agreement, at no time shall any such party hereto disclose any of the terms of this Agreement or any non-public information about a party hereto to any other Person (other than such party’s representatives in accordance with the Confidentiality Agreement) without the prior written consent of the party hereto about which such non-public information relates unless required by applicable Law or securities listing standards (in the reasonable opinion of counsel to the disclosing party). Notwithstanding anything to the contrary in the foregoing, a party hereto shall be permitted to disclose any and all terms of this Agreement (a) to its financial, tax and legal advisors on a need-to-know basis; provided that (i) the applicable recipient of such information is subject to a an obligation or duty of confidentiality that is no less restrictive than the obligations contained in this Section 5.5 in any material respect, and (ii) such party shall be liable in the event that any such Person discloses any such information that such party would be prohibited from disclosing directly), or (b) in connection with the Financing in accordance with Section 5.11. If this


 
65 US-DOCS\157178066.13 Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement will continue in full force and effect in accordance with its terms. The Company Representative shall not disclose any of the terms of this Agreement or any non-public information about a party hereto to any other Person; provided, that notwithstanding the foregoing or anything in this Agreement to the contrary, following Closing, the Company Representative shall be permitted to: (i) after the public announcement of the Merger, announce that it has been engaged to serve as the Company Representative in connection herewith as long as such announcement does not disclose any of the other terms hereof; and (ii) disclose information as required by law or to advisors and representatives of the Company Representative and to the Company Securityholders, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect thereto. Section 5.6 Public Announcements. Except for the joint press release to be issued by Purchaser and the Company following the execution of this Agreement, in the form previously agreed to by the parties, and to the extent required by applicable Law or securities listing standards (in the reasonable opinion of counsel to the disclosing party), neither the Company nor Purchaser shall issue any press release or make any other public announcement relating to this Agreement or the transactions contemplated hereby without the prior written approval of the other party; provided, that Purchaser and the Company may make disclosures or statements that are substantially consistent with previous press releases, public disclosures or public statements made by the parties hereto. Section 5.7 Indemnification and Insurance. (a) Purchaser acknowledges and agrees that all rights of indemnification, advancement of expenses, exculpation, and limitation of liability in favor of the D&O Indemnified Parties (as defined below) as provided in the Company’s Governing Documents and in the indemnification agreements listed on Section 5.7 of the Company Disclosure Schedule (the “Director Indemnification Agreements”), in each case, as in effect on the date hereof with respect to matters occurring prior to the Effective Time will continue in full force for a period of six (6) years following the Closing Date. For a period of six (6) years after the Closing Date, (i) Purchaser shall cause the Surviving Company to (A) continue to indemnify and hold harmless each of the present and former directors, officers and employees of the Company (the “D&O Indemnified Parties”), in their capacities as such, from and against all damages, costs and expenses (including reasonable attorney’s or other professional fees and expenses) incurred or suffered in connection with any threatened or pending Proceeding arising out of or pertaining to the status of such individual as a director, officer and employee of the Company prior to the Effective Time, pursuant to the Governing Documents and/or the Director Indemnification Agreements, if applicable (in each case, as the same exist as of the date of this Agreement); provided, however, that no such D&O Indemnified Party may settle any such claim without the prior approval of Purchaser; provided, further, that any rights to recovery thereunder shall be limited to the extent of proceeds actually received under the Tail Policy with respect to any such claim; and (B) to the extent provided in the Company’s Governing Documents or in any applicable Director Indemnification Agreement as in effect on the date hereof, advance any and all fees, costs and expenses (including the cost of investigation and preparation) of any D&O Indemnified Party pursuant thereto (subject to any limitations and conditions contained therein), and (ii) Purchaser shall not, and shall cause the Surviving Company not to, amend, repeal or otherwise modify such provisions relating to indemnification, advancement of expenses, exculpation and limitation of liability in a manner that would adversely affect in any material respect the rights of any D&O Indemnified Party thereunder.


 
66 US-DOCS\157178066.13 (b) The Company shall cause and, following the Effective Time, Purchaser shall cause the Surviving Company to cause, the individuals serving as directors or officers of the Company immediately prior to the Effective Time to be covered for a period of at least six (6) years from the Effective Time by the directors’ and officers’ liability and errors and omissions insurance policy (including with respect to acts or omissions occurring in connection with this Agreement and the transactions contemplated hereby) (the “Tail Policy”) on terms with respect to coverage and amounts no less favorable to such directors and officers than those of such policies that are maintained by the Company as of the date of this Agreement (including the fiduciary and employment practices liabilities coverage provided therein). For avoidance of doubt, the Tail Policy will provide coverage for such directors and officers with respect to acts or omissions occurring prior to the Effective Time which were committed by such directors or officers in their capacity as such. (c) If the Surviving Company merges into, consolidates with or transfers all or substantially all of its assets to another Person, then in each such case Purchaser shall make and shall cause the Surviving Company to make proper provision so that the surviving or resulting Person or the transferee in such transaction shall assume the obligations of Purchaser and the Surviving Company under this Section 5.7. (d) The provisions of this Section 5.7 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Party, together with any such individual’s heirs, executors, personal representatives and assigns. Section 5.8 Employee Matters. (a) For a period of not less than twelve (12) months after the Closing Date, Purchaser and its Subsidiaries (including the Surviving Company from and after the Closing), shall provide, or shall cause to be provided, to employees of the Company who continue to be employed by Purchaser or its Subsidiaries immediately following the Closing (each, a “Continuing Employee”): (a) a base salary or regular hourly wage, as applicable, (b) bonus and incentive opportunities (excluding equity-based incentive opportunities) and (c) retirement, health, welfare and fringe benefits (including, vacation/leave benefits) that, in the aggregate, are not materially less favorable than those provided to such Continuing Employee immediately prior to the Closing Date. (b) To the extent that service is relevant for purposes of eligibility, vesting or benefit accrual (but not benefit accrual for any pension benefit plan) under any employee benefit plan, program or arrangement established or maintained by Purchaser for the benefit of Continuing Employees, Purchaser will use commercially reasonable efforts to cause such plan, program or arrangement to credit such employees or former employees for service on or prior to the Closing with the Company (including any current or former Affiliate thereof or any predecessor). In addition, and without limiting the generality of the foregoing, Purchaser shall, or shall cause its Affiliates to, use commercially reasonable efforts to: (i) cause any pre-existing conditions or limitations, exclusions, eligibility waiting periods, actively at work requirements, evidence of insurability requirements or required physical examinations under any employee benefit plan provided by Purchaser or any of its Subsidiaries (“Purchaser Plan”) providing medical, dental, hospital, pharmaceutical or vision benefits to be waived with respect to Continuing Employees and their spouses and eligible dependents, and (ii) fully credit each Continuing Employee with all deductible payments, co-payments and other out-of-pocket expenses incurred by such Continuing Employee and his or her spouse and covered dependents under Company Plan providing medical, dental, hospital, pharmaceutical or vision benefits plans of the Company prior to the Closing during the plan year in which the Continuing Employee commences


 
67 US-DOCS\157178066.13 participation in such Purchaser Plan for the purpose of determining the extent to which such Continuing Employee has satisfied the deductible, co-payments, or maximum out-of-pocket requirements applicable to such Continuing Employee and his or her spouse and covered dependents for such plan year under comparable Purchaser Plans, as if such amounts had been paid in accordance with such plan. (c) The Company shall terminate its participation in any PEO Benefit Plan that is a 401(k) plan prior to the Closing Date. To the extent such 401(k) plan is a PEO Benefit Plan, and to the extent required by such PEO, the Company shall spin off the assets from the PEO Benefit Plan to a standalone 401(k) plan sponsored by the Company and the Company shall subsequently terminate such standalone 401(k) plan prior to the Closing Date. As soon as administratively practicable following the Closing Date, Purchaser shall take all commercially reasonably actions necessary to permit employees who have an account balance under the Company’s standalone 401(k) plan to rollover (whether by direct or indirect rollover, as selected by such employee) his or her “eligible rollover distribution” (as defined under Section 402(c)(4) of the Code) in the form of cash, a promissory note (in the case of loans) or any combination thereof from the Company’s standalone 401(k) plan to an eligible retirement plan maintained by Purchaser or its Affiliates. (d) This Section 5.8 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing herein, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.8. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement of the Company or Purchaser, nor any of their respective Affiliates. The Parties acknowledge and agree that the terms set forth in this Section 5.8 shall not create any right in any employee of the Company or any other Person to any continued employment with Purchaser or any of its Affiliates (including the Surviving Company), or compensation or benefits of any nature or kind whatsoever. Section 5.9 R&W Policy. On or prior to the date hereof, Purchaser has conditionally bound coverage under the R&W Policy and delivered a true and correct copy of the R&W Policy to the Company and the Company Representative. At the Closing, Purchaser shall take all necessary actions to bind coverage under the R&W Policy. At the Closing, Purchaser shall cause the R&W Policy to continue to expressly provide that the insurer thereunder shall not have (and has irrevocably waived) the right to pursue any subrogation rights or contribution rights or any other claims against the Company Securityholders, the Company or any of their respective direct or indirect, past or present, stockholders, members, partners, employees, directors or officers in connection with any claim made thereunder, except in the event of Fraud, and Purchaser shall not amend or waive any such provision without the prior written consent of the Company (prior to the Closing) or the Company Representative (after the Closing). Section 5.10 Section 280G Vote. The Company shall promptly, and in any case prior to the Closing, seek approval, in a manner that complies with Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder, of the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) who has executed a waiver referenced below to receive or retain any payments that could reasonably be expected to, in the absence of such approval, constitute “excess parachute payments” (as defined in Section 280G(b)(1) of the Code). Prior to seeking such approval, the Company shall solicit and use its commercially reasonable efforts to obtain waivers from the intended recipients of such payments in which case, unless approved to the extent required by and in the manner that complies with Section 280G(b)(5)(B) of the Code and the Treasury Regulations


 
68 US-DOCS\157178066.13 promulgated thereunder, neither Purchaser, the Company nor any of their respective Affiliates shall make such waived payments. Within a reasonable period of time prior to seeking any waiver or approval, but in any event at least five (5) days prior to seeking such waiver or approval, the Company shall deliver to Purchaser drafts of all waivers, consents, disclosures, calculations and other documents prepared in connection with the actions described in this Section 5.10 for Purchaser’s review and comment. The Company will cause the final versions of such documents to reflect Purchaser’s reasonable comments. Prior to the Closing, the Company shall deliver to Purchaser evidence that a vote of the Company’s stockholders was solicited in all material respects in accordance with the foregoing provisions of this Section 5.10 and that either (a) the requisite number of stockholder votes was obtained with respect to the applicable “parachute payments” (the “280G Approval”) or (b) that the 280G Approval was not obtained, and, as a consequence, the applicable “parachute payments” shall not be made or provided. To the extent that, prior to the Closing, Purchaser or its Affiliates enter into or negotiate a compensation arrangement with any individual who has been identified by the Company as a “disqualified individual” under Section 280G, Purchaser shall promptly notify the Company of such arrangement so that the Company may consider it in connection with the Company Section 280G analysis. Section 5.11 Financing Covenants. (a) Purchaser agrees to use best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange equity, debt or other financing (collectively, the “Financing”) to be utilized to consummate the transactions contemplated by this Agreement. Such actions shall include the following: (i) negotiating, executing and delivering definitive documentation with respect to the Financing (the “Financing Documents”); (ii) satisfying on a timely basis (or seeking a waiver of) all conditions set forth in the Financing Documents that are within Purchaser’s or any of its Affiliates’ control; (iii) paying all commitment or other fees and amounts that become due and payable under or with respect to the Financing as they become due and payable; and (iv) drawing on the Closing Date the full amount of the Financing necessary to consummate the Merger. (b) Neither Purchaser, any of Purchaser’s Affiliates nor any of their respective personnel or other Representatives, shall provide any representations, warranties, opinions, analysis or other statements (whether written or oral) to any Person in respect of the Financing that relate to Purchaser’s, the Company’s or any of their respective Affiliate’s solvency or insolvency (whether current or projected following the Closing) without (i) previously providing a copy of all such communications to the Company and (ii) incorporating any factually accurate edits to such communications provided by the Company. (c) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company agrees to use commercially reasonable efforts to, and to cause its Representatives to, at Purchaser’s reasonable request, cooperate with Purchaser in connection with the arrangement of the Financing, including by (i) making available the Company’s officers and members of management with appropriate seniority and expertise to


 
69 US-DOCS\157178066.13 participate in a reasonable number of meetings, drafting sessions, presentations, road shows, rating agency meetings and due diligence sessions, in each case, upon reasonable advance notice and at reasonable dates and times (which participation may be remote via Zoom or other similar services), (ii) furnishing on a confidential basis to Purchaser, Purchaser’s Representatives and any sources or prospective sources or the Financing (the “Financing Sources”), such financial information regarding the Company and other customary and pertinent information regarding the Company as may be reasonably requested by Purchaser and the Financing Sources, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A of the Securities Act (the information described in this clause (ii), the “Required Information”), (iii) assisting Purchaser and Purchaser’s Representatives in the preparation of customary marketing materials for any portion of the Financing as may reasonably be requested by Purchaser, Purchaser’s Representatives or the Financing Sources, (iv) (x) assisting Purchaser in the preparation of the schedules to any loan agreement, guarantees, pledge and security documents and other Financing Documents, as may be reasonably requested by Purchaser, Purchaser’s Representatives or the Financing Sources and otherwise cooperating with Purchaser, Purchaser’s Representatives and the Financing Sources in facilitating the pledging of collateral and the granting of security interests effective as of the Closing Date and (y) cooperating in satisfying the conditions precedent set forth in any Financing Documents only to the extent the satisfaction requires the cooperation, or is within the control, of the Company, (v) furnishing to Purchaser, Purchaser’s Representatives and the Financing Sources customary information under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, at least three (3) Business Days prior to the Closing Date, to the extent requested at least ten (10) Business Days prior to the Closing Date, (vi) following Purchaser’s reasonable request, using reasonable best efforts to cause directors and officers who will continue to hold such offices and positions from and after the Closing Date to execute resolutions or consents of the Company that do not become effective until the Closing Date with respect to entering into the Financing Documents and otherwise as necessary to authorize consummation of the Financing, and (viii) promptly after gaining actual knowledge thereof, notifying Purchaser and supplementing the written information concerning the Company furnished pursuant to this Section 5.11(c) solely to the extent that any such information contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made. (d) Notwithstanding anything in this Agreement to the contrary, the Company shall not be required to: (i) take any action in connection with the Financing that would unreasonably interfere with the ongoing operations of the Company (it being understood that none of the actions described in Section 5.11(c) shall be deemed to so interfere); (ii) provide or prepare pro forma financial information, including pro forma costs savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financing information; (iii) waive or amend any terms of this Agreement or agree to pay any commitment or other fee or reimburse any expenses prior to the Closing that is not reimbursable by Purchaser; (iv) incur any liability, including any indemnification obligation, or pay any fee prior to the closing of the Financing; (v) take any action that would (x) cause any representation, warranty, covenant or agreement in this Agreement or any other Ancillary Agreement to be breached, (y) require cooperation that would violate, or result in the waiver of any benefit under, any Material Contract, this Agreement, or any applicable Law to which the Company is a party or to which the Company is subject, or (z) conflict with the Governing Documents of the Company or any Law; (vi) take any action that would require any director, officer or employee of any member of the Company to execute any document, agreement, certificate or instrument that is not contingent upon


 
70 US-DOCS\157178066.13 the Closing or that would otherwise become effective prior to the Closing; (vii) provide any financial (or other) information that (1) is not produced in the ordinary course of business or (2) cannot be produced or provided without unreasonable cost or expense; (viii) take any action that could reasonably be expected to subject any director, manager, officer or employee of the Company to any actual or potential personal liability, (ix) provide access to or disclose information that the Company determines in good faith would jeopardize any attorney client privilege of, or conflict with any confidentiality requirements applicable to, the Company; (x) take any action to the extent it could cause any condition to the Closing set forth in Article 6 to fail to be satisfied or otherwise cause any breach of this Agreement; or (xi) deliver or cause the delivery of any legal opinions or accountants’ comfort letters or reliance letters in connection with the Financing (but the Company shall use commercially reasonable efforts to deliver the same if requested by Purchaser). (e) Purchaser shall indemnify and hold harmless, the Company and its Affiliates, and each of their respective Representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Financing and any information in connection therewith, except to the extent resulting from the gross negligence, fraud or willful misconduct of the Company or any of its Affiliates or its or their respective Representatives, arising from incorrect or misleading information provided by the Company or any of its Affiliates or its or their respective Representatives, or to the extent that the indemnity relates to matters with respect to which Purchaser is entitled to indemnity hereunder. (f) Purchaser shall promptly upon written request by the Company, reimburse the Company for all reasonable and reasonably documented out-of-pocket third-party costs and expenses incurred by it in connection with its cooperation with the Financing pursuant to this Section 5.11. (g) Notwithstanding anything to the contrary contained herein, each of the parties hereto acknowledges and agrees that the condition precedent set forth in Section 6.1(b), as applied to the Company’s obligations under this Section 5.11, shall be deemed to be satisfied unless the Company’s material breach of its obligations under this Section 5.11 is the primary and proximate cause of Purchaser’s failure to obtain the Financing, in which case (i) Purchaser shall have provided the Company with written notice of such material breach, and (ii) the Company shall have failed to use good faith efforts to cure such material breach within the earlier of (A) thirty (30) days after the Company’s receipt of such notice from Purchaser and (B) three (3) Business Days prior to the Outside Date (so long as the Company shall have had at least five (5) Business Days to cure such material breach). (h) Financing Not a Condition. Purchaser acknowledges and agrees that, without limiting the restrictions on the Company’s ability to cause Purchaser to specifically perform its obligations to consummate the Closing expressly set forth in Section 11.11(b), (i) obtaining the Financing is not a condition to Purchaser’s or MergerSub’s obligations under this Agreement, and (ii) if the Financing has not been obtained, Purchaser shall continue to be obligated, until such time as the Agreement is terminated in accordance with its terms, to comply with its obligations under this Section 5.11. Section 5.12 Further Actions. Subject to the other express provisions of this Agreement, upon the request of any party to this Agreement, the other parties will execute and deliver such other documents, instruments and agreements as the requesting party may reasonably require for the purpose of carrying out the intent of this Agreement and the transactions contemplated by this Agreement.


 
71 US-DOCS\157178066.13 ARTICLE 6 CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE Section 6.1 Conditions to the Obligation of Purchaser and MergerSub. The obligation of Purchaser and MergerSub to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Purchaser to the extent permitted by applicable Law), on or before the Closing Date, of each of the following express conditions: (a) Accuracy of Representations and Warranties. (i) Each of the representations and warranties of the Company in this Agreement (excluding the Company Fundamental Representations) shall be true and correct in all respects on and as of the date hereof and as of the Closing with the same effect as though made at and as of such date (except to the extent any such representation or warranty speaks as of a specific date, in which case such representation or warranty must have been true and correct in all respects as of such date), except where the failure of such representations and warranties to be so true and correct (without regard for any “material,” “Material Adverse Effect” or similar qualification) would not reasonably be expected to constitute a Material Adverse Effect; (ii) each of the Company Fundamental Representations (other than the representations and warranties contained in Section 3.14) shall be true and correct in all respects (except for de minimis inaccuracies) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except to the extent any such Company Fundamental Representation speaks as of a specific date, in which case such Company Fundamental Representation must have been true and correct in all respects (except for de minimis inaccuracies) as of such date); and (iii) each of the representations and warranties of the Company contained in Section 3.14 shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date (except to the extent any such representation or warranty speaks as of a specific date, in which case such representation or warranty must have been true and correct in all material respects as of such date) (solely with respect to this clause (iii)), without regard for any “material”, “Material Adverse Effect” or similar qualification; (b) Performance of Covenants. Each of the covenants and obligations that the Company is required to perform or comply with under this Agreement on or before the Closing Date must have been duly performed and complied with by the applicable Person in all material respects (subject to Section 5.11(f)); (c) HSR Act. All applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise terminated; (d) No Action. (i) No Governmental Authority shall have enacted, issued, or promulgated any Law or Judgment that is in effect that enjoins, restrains, makes illegal or otherwise prohibits the consummation of the transactions contemplated by this Agreement, and (ii) no Proceeding brought by any Governmental Authority shall be pending that seeks to prohibit, temporarily or permanently restrain, enjoin or make illegal the consummation of the transactions contemplated by this Agreement; (e) Post-Signing Consent. The Post-Signing Consent, (i) duly executed by the Company Stockholders set forth in Section 5.4(c), shall have been timely delivered in accordance with Section 5.4(c) and (ii) duly executed (whether personally or by proxy) by Company Stockholders holding at least 92.5% of the issued and outstanding Company Stock (determined on as converted to Common Stock basis) (the “Requisite Stockholder Approval”);


 
72 US-DOCS\157178066.13 (f) Material Adverse Effect. From the date of this Agreement, there shall not have occurred any Material Adverse Effect; and (g) Closing Deliveries. The Company must have delivered or caused to be delivered each document or other deliverable that Section 2.12(a) requires it to deliver or cause to be delivered. Section 6.2 Conditions to the Obligation of the Company. The obligation of the Company to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by the Company to the extent permitted by applicable Law), on or before the Closing Date, of each of the following express conditions: (a) Accuracy of Representations and Warranties. (i) Each of the representations and warranties of Purchaser and MergerSub in this Agreement (other than Purchaser Fundamental Representations) shall be true and correct in all material respects on and as of the date hereof and as of the Closing with the same effect as though made at and as of such date (except to the extent any such representation or warranty speaks as of a specific date, in which case such representation or warranty must have been true and correct in all material respects as of such date), without regard to any “material,” “material adverse effect” or similar qualification; and (ii) each of the Purchaser Fundamental Representations shall be true and correct in all respects (except for de minimis inaccuracies) on and as of the date hereof and on and as of the Closing with the same effect as though made at and as of such date (except to the extent any such Purchaser Fundamental Representation speaks as of a specific date, in which case such Purchaser Fundamental Representation must have been true and correct in all respects (except for de minimis inaccuracies) as of such date); (b) Performance of Covenants. Each of the covenants and obligations that Purchaser and/or MergerSub is required to perform or comply with under this Agreement or any Ancillary Agreement on or before the Closing Date must have been duly performed and complied with in all material respects; (c) HSR Act. All applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise terminated; (d) No Action. (i) No Governmental Authority shall have enacted, issued, or promulgated any Law or Judgment that is in effect that enjoins, restrains, makes illegal or otherwise prohibits the consummation of the transactions contemplated by this Agreement, and (ii) no Proceeding brought by any Governmental Authority shall be pending that seeks to prohibit, temporarily or permanently restrain, enjoin or make illegal the consummation of the transactions contemplated by this Agreement; and (e) Closing Deliveries. Purchaser must have delivered or caused to be delivered each document or other deliverable that Section 2.12(b) requires it to deliver or cause to be delivered. ARTICLE 7 TERMINATION Section 7.1 Termination Events. This Agreement may, by written notice given before or at the Closing, be terminated: (a) by mutual consent of Purchaser and the Company;


 
73 US-DOCS\157178066.13 (b) by Purchaser (so long as Purchaser is not then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement), if there has been a breach of any of the Company’s representations, warranties, covenants or agreements contained in this Agreement, which would result in the failure of a condition set forth in Section 6.1(a) or Section 6.1(b), and which breach is not curable or, if curable, has not been cured prior to the earlier of (i) thirty (30) days after written notice of the breach has been delivered to the Company from Purchaser; provided that no such cure period shall be available or applicable to any material breach by the Company of its obligations under Section 5.3; or (ii) three (3) Business Days prior to the Outside Date; (c) by the Company (so long as the Company is not then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement), if there has been a breach of any of Purchaser’s and/or MergerSub’s representations, warranties, covenants or agreements contained in this Agreement, which would result in the failure of a condition set forth in Section 6.2(a) or Section 6.2(b), and which breach is not curable or, if curable, has not been cured prior to the earlier of (i) thirty (30) days after written notice of the breach has been delivered to Purchaser from the Company or (ii) three (3) Business Days prior to the Outside Date; (d) by either the Company or Purchaser if any Governmental Authority has issued a nonappealable final Judgment having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section 7.1(d) will not be available to any party whose failure to fulfill any covenant or agreement under this Agreement has been the proximate cause of or resulted in the action or event described in this Section 7.1(d) occurring; (e) by either the Company or Purchaser if the Closing has not occurred on or before June 30, 2025 (as may be extended pursuant to Section 11.11, the “Outside Date”); provided, that the right to terminate this Agreement pursuant to this Section 7.1(e) shall not be available to either party if such party is in breach of any covenant, agreement, representation or warranty contained in this Agreement, which breach is the proximate cause of the failure of the Closing to occur on or prior to the Outside Date; or (f) by the Company if (i) the Closing shall not have occurred by the Inside Date, (ii) all of the conditions set forth in Section 6.1 have been satisfied (or waived by Purchaser), other than those conditions that, by their nature, are to be satisfied at the Closing but which conditions are then capable of being satisfied, (iii) the Company has irrevocably confirmed at least five (5) Business Days prior to the date of such termination by written notice to Purchaser that (A) all conditions set forth in Section 6.2 have been satisfied or (other than those that, by their nature, are to be satisfied at the Closing but which conditions are then capable of being satisfied), or that it would be willing to waive any unsatisfied conditions in Section 6.2 and (B) the Company is prepared to consummate the Merger if Purchaser and Merger Sub perform their respective obligations hereunder, and (iv) Purchaser fails to consummate the Closing within five (5) Business Days following the delivery of such notice. Section 7.2 Effect of Termination. (a) If this Agreement is terminated pursuant to Section 7.1, this Agreement and all rights and obligations of the parties under this Agreement shall automatically end without Liability against any party or its Affiliates, except that (i) Section 5.5 (Confidentiality), Section 5.6 (Public Announcements), Section 5.11(e), Section 5.11(f), Article 11 (General Provisions), this Section 7.2 and the Confidentiality Agreement will remain in full force and survive any termination of this


 
74 US-DOCS\157178066.13 Agreement and (ii) subject to Section 7.2(b), the termination of this Agreement shall not relieve any party from Liability for any intentional and material breach of a term of this Agreement occurring prior to such termination or any party for Liability for Fraud. (b) In the event that this Agreement is validly terminated by (i) the Company pursuant to Section 7.1(c) or Section 7.1(f), or (ii) the Company or Purchaser pursuant to Section 7.1(e) at such time when the Company was entitled to terminate this Agreement pursuant to Section 7.1(f) (any such termination, a “RTF Termination”), then Purchaser shall pay to the Company, by wire transfer of same- day funds to an account designated in writing by the Company within ten (10) Business Days after such valid termination of this Agreement, an amount equal to $12,000,000 (such amount, the “Termination Fee”). The parties acknowledge and agree that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which the Termination Fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be uncertain and incapable of accurate determination. Notwithstanding anything to the contrary set forth in this Agreement, in the event this Agreement is validly terminated pursuant to a RTF Termination, the Company’s right to receive payment of the Termination Fee and any additional amounts that may be payable to the Company pursuant to Section 5.11(e), Section 5.11(f) or Section 7.2(c) (“Additional Amounts”) shall constitute the sole and exclusive remedy (whether at law or in equity, whether in contract or in tort or otherwise) of the Company against Purchaser, Purchaser’s Affiliates or its or their respective Representatives for any Loss, Liability or damage suffered as a result of, relating to or arising out of this Agreement, the Ancillary Agreements or the transactions contemplated hereby and thereby, including the failure of the transactions contemplated by this Agreement to be consummated, and upon payment of the Termination Fee and any Additional Amounts in full, neither Purchaser, Purchaser’s Affiliates nor their respective Representatives shall have any further Liability relating to or arising out of this Agreement, any Ancillary Agreement or any other documents and instruments executed by Purchaser, Purchaser’s Affiliates or their respective Representatives pursuant hereto or thereto or the transactions contemplated hereby or thereby (or the abandonment or termination thereof); provided, that nothing in this Section 7.2(b) shall limit the right of the Company, (A) to bring any Proceeding arising out of or in connection with a breach of the Confidentiality Agreement or for Fraud, or (B) to bring or maintain any Proceeding for specific performance to the extent provided pursuant to Section 11.11 (it being understood that under no circumstance will the Company be entitled to receive both a grant of specific performance to compel Purchaser to consummate the Closing and the payment of the Termination Fee). Each party covenants and agrees that it will not take any position that is inconsistent with the immediately preceding two sentences. The parties acknowledge that the agreements contained in this Section 7.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter into this Agreement. Notwithstanding anything to the contrary in this Agreement, upon timely payment of the Termination Fee and any Additional Amounts, Purchaser and its Affiliates and Representatives shall not have any further Liability or obligation to the Company or any of its Affiliates or Representatives or any Company Securityholder relating to or arising out of this Agreement (other than for breach by Purchaser or its applicable Affiliate of the Confidentiality Agreement or for Fraud). In no event shall Purchaser be required to pay the Termination Fee on more than one occasion or any amounts in excess of the Termination Fee and the Additional Amounts in connection with any termination of this Agreement (including any RTF Termination).


 
75 US-DOCS\157178066.13 (c) Notwithstanding anything to the contrary contained herein, if Purchaser fails to pay the Termination Fee or any Additional Amounts pursuant to Section 7.2(b) on or prior to the date such payment is due hereunder (as applicable), and, in order to obtain such payment, the Company commences a Proceeding that results in a final, nonappealable Judgment against Purchaser for the payment of the Termination Fee or such Additional Amounts, Purchaser shall pay, or cause to be paid, to the Company (or the Company’s designee), interest on such amount at an annual rate equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date such payment was originally due hereunder which shall accrue from such date through the date such payment is actually delivered to the Company (or the Company’s designee), and the reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Company in connection with any such Proceeding. (d) Notwithstanding anything to the contrary contained herein, but without limiting the Company’s ability to cause Purchaser to specifically perform its obligations to consummate the Closing as set forth in Section 11.11, the maximum monetary liability of Purchaser for Losses, Liabilities or damages for any claim based on any breach of this Agreement (other than for Fraud and, for avoidance of doubt, Liabilities arising from Purchaser’s compliance with any Order for specific performance that is finally determined in favor of the Company in accordance with Section 11.11) whether at law or in equity, whether in contract or in tort or otherwise or that relates to this Agreement or the transactions contemplated hereby shall be (i) $12,000,000 plus (ii) any Additional Amounts. ARTICLE 8 INDEMNIFICATION Section 8.1 Survival. (a) Subject to Section 8.1(b), the Company Fundamental Representations and the Purchaser Fundamental Representations contained in this Agreement shall each survive the Closing and continue in full force and effect until 11:59 p.m., Central time on the sixth (6th) anniversary of the Closing Date; provided, that the Company Fundamental Representations contained in Section 3.14 shall survive for the applicable statute of limitations plus sixty (60) days. Subject to Section 8.1(b), all representations and warranties contained in this Agreement and any certificate delivered in connection herewith that are not Company Fundamental Representations or Purchaser Fundamental Representations shall survive the Closing and continue in full force and effect until 11:59 p.m., Central time, on the first (1st) anniversary of the Closing Date. Each covenant hereunder that is required by its terms to be performed at or prior to the Closing shall terminate as of the Closing. Each covenant hereunder that is required by its terms to be performed following the Closing shall survive until such covenant is fully performed in accordance with its terms. The parties agree and acknowledge that the survival periods set forth herein, to the extent expressly longer than the three (3) year survival period permitted by Title 10, Section 8106(a) of the Delaware Code, are expressly intended to survive for such longer periods as permitted by Title 10, Section 8106(c) of the Delaware Code. (b) Notwithstanding the foregoing, any representation, warranty or covenant in respect of which indemnity may be sought under this Article 8, and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Article 8 if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or potential right of indemnity shall have been given in writing to the party against whom such indemnity may be sought prior to the applicable survival termination date in accordance with Section 8.5 (regardless of when the Losses in respect thereof may actually be incurred) so long as a breach giving rise to any


 
76 US-DOCS\157178066.13 such Losses has occurred on or prior to the applicable survival termination date, and any such representation, warranty or covenant shall survive and continue in full force and effect until the claim or potential claim for indemnity with respect to such inaccuracy or breach or potential inaccuracy or breach is finally resolved. Notwithstanding anything in this Agreement to the contrary, in the event of any breach of a representation or warranty by a party hereto that constitutes Fraud, the representation or warranty shall survive the Closing and continue in full force and effect indefinitely. (c) Notwithstanding anything to the contrary herein, nothing in this Agreement shall limit any claim or recovery available to any Purchaser Indemnitee under the R&W Policy or other insurance policy applicable to any Purchaser Indemnitee or the transactions contemplated by this Agreement. Section 8.2 Indemnification by the Company Securityholders. From and after the Closing, each of the Company Securityholders, who will be represented by the Company Representative (such Company Securityholders, collectively, the “Seller Indemnifying Parties”), shall, severally and not jointly and on a pro rata basis in accordance with their respective Pro Rata Percentages, indemnify, defend and hold harmless Purchaser, its Affiliates (including the Surviving Company from and after the Closing) and each of their respective direct and indirect equityholders, controlling persons, directors, officers, employees, agents, Representatives, Affiliates, members, managers, general or limited partners, trustees, beneficiaries, heirs, successors and assigns (or any former, current or future equityholder, controlling person, director, officer, employee, agent, Representative, Affiliate, member, manager, general or limited partner, trustee, beneficiary, heir, successor or assign of any of the foregoing) (each, a “Purchaser Indemnitee” and, collectively, the “Purchaser Indemnitees”) against and from any and all Losses which any Purchaser Indemnitee may incur, suffer or become subjected to, that arise out of, relate to, are in connection with or result from: (a) any inaccuracy in or the breach of any representation or warranty of the Company contained in this Agreement (as modified by the Company Disclosure Schedules) or the Company Closing Certificate; (b) any breach of any covenant or agreement made by the Company in this Agreement; and (c) the matters described on Section 8.2(c) of the Company Disclosure Schedule. Section 8.3 Indemnification by Purchaser. From and after the Closing, Purchaser shall, on its own behalf and on behalf of its successors and assigns (collectively, the “Purchaser Indemnifying Parties”), indemnify, defend and hold harmless the Company Securityholders, their Affiliates and each of their respective direct and indirect equityholders, controlling persons, directors, officers, employees, agents, Representatives, Affiliates, members, managers, general or limited partners, trustees, beneficiaries, heirs, successors or assignees (or any former, current or future equityholder, controlling person, director, officer, employee, agent, Representative, Affiliate, member, manager, general or limited partner, trustee, beneficiary, heir, successor or assign of any of the foregoing) (each, a “Seller Indemnitee” and, collectively, the “Seller Indemnitees”) against and from any and all Losses which any Seller Indemnitee may incur, suffer or become subjected to, that arise out of, relate to, are in connection with or result from: (a) any inaccuracy in or the breach of any representation or warranty of Purchaser or Merger Sub contained in this Agreement the Purchaser Closing Certificate; and


 
77 US-DOCS\157178066.13 (b) any breach of any covenant or agreement made by (i) Purchaser or Merger Sub of any covenant or agreement of Purchaser or Merger Sub contained in this Agreement, or (ii) the Surviving Company of any covenant or agreement of the Company or the Surviving Company that, by its terms, provides for performance following the Closing. Section 8.4 Scope of Liability. (a) The Seller Indemnifying Parties shall not be required to indemnify the Purchaser Indemnitees under Section 8.2(a), unless and until the aggregate amount of all Losses for which indemnification is sought by the Purchaser Indemnitees thereunder first exceeds $1,000,000 (the “Deductible”), in which event the Seller Indemnifying Parties shall indemnify the Purchaser Indemnitees for all such Losses in excess of the Deductible (but subject to Section 8.4(b)). The Seller Indemnifying Parties shall not be required to indemnify the Purchaser Indemnitees with respect to Losses (i) arising from Claims arising from or based upon any breach or inaccuracy of any representation or warranty that is not a Company Fundamental Representation in excess of the Indemnity Escrow Amount or (ii) arising from Claims arising from or based upon the matters described on Section 8.2(c) of the Company Disclosure Schedule in excess of the Specific Indemnity Amount; provided, that notwithstanding the foregoing or anything to the contrary in this Agreement, (x) the Deductible shall not apply with respect to Losses arising from Claims arising from or based upon Fraud and (y) the Deductible shall not apply with respect to Losses arising from Claims arising from or based upon any breach or inaccuracy of any of the Company Fundamental Representations. (b) In the event of any Claim by any Purchaser Indemnitee against any Seller Indemnifying Party for Losses under Section 8.2(a) (and where applicable, in excess of the Deductible), such Purchaser Indemnitee may, at such Purchaser Indemnitee’s sole discretion, seek payment from the Indemnity Escrow Amount to the extent of the total amount of the Indemnity Escrow Amount then available and not subject to any prior Claim by the Purchaser Indemnitees has been reduced to zero or the Indemnity Escrow Amount has been otherwise released in accordance with the terms of this Agreement and the Escrow Agreement, and from the R&W Policy concurrently to the extent such Losses could reasonably be expected to be recoverable under the R&W Policy. Notwithstanding anything to the contrary contained herein, with respect to any indemnifiable Losses arising under Section 8.2(a), Purchaser shall, and shall cause the other Purchaser Indemnitees to, (i) submit all bona fide claims for such Losses (including, for avoidance of doubt, Losses arising out of any breach of Company Fundamental Representations) to the insurer under the R&W Insurance Policy to be satisfied and eroded (notwithstanding the fact that any such claim may not be in excess of the retention contained in the R&W Insurance Policy), and (ii) use commercially reasonable efforts to secure recovery under the R&W Policy in accordance with its terms and conditions to the extent such Losses are reasonably expected to be recoverable thereunder (taking into account any exclusions and other limitations contained therein); provided, that in no event shall Purchaser be required to initiate any litigation, arbitration or other legal proceeding against the issuer of the R&W Policy for any such Losses or be prevented from seeking to recover simultaneously from the Seller Indemnifying Parties and under the R&W Policy for any such Losses. Other than (A) in the case of Fraud or (B) with respect to breaches of any Company Fundamental Representation, the Seller Indemnifying Parties shall have no obligation to indemnify the Purchaser Indemnitees from and against any Losses pursuant to Section 8.2(a) after the exhaustion and/or release of the Indemnity Escrow Amount or pursuant to Section 8.2(c) after the exhaustion and/or release of the Specific Indemnity Escrow Amount, and the payments made from the Indemnity Escrow Amount or the Specific Indemnity Escrow Amount, as applicable, to the Purchaser Indemnitees pursuant to this Article 8 shall constitute full satisfaction of any obligation of the Seller


 
78 US-DOCS\157178066.13 Indemnifying Parties to make such payments to the Purchaser Indemnitees for Losses pursuant to Section 8.2(a) or Section 8.2(c) (as the case may be). (c) Notwithstanding anything to the contrary in this Agreement, the Deductible shall not apply in respect of Claims for indemnification under Section 8.2(b). In the event of any Claim by a Purchaser Indemnitee against any Seller Indemnifying Party in respect of Claims for indemnification under Section 8.2(b), the Purchaser Indemnitee may seek payment from the Indemnity Escrow Amount, from the R&W Policy and/or from the Seller Indemnifying Parties, in the Purchaser Indemnitee’s sole discretion. (d) If, following the Closing, any Claim is made by any Purchaser Indemnitee, or an amount otherwise becomes due from any Seller Indemnifying Party pursuant to Section 8.2 in respect of any Losses (a “Loss Payment”), the Seller Indemnifying Parties shall have no rights or claims of contribution, indemnification or subrogation against the Surviving Company or any direct or indirect partner, member, shareholder, director, manager, officer or employee thereof (in their capacity as such) in respect of any such Loss Payment and shall not take any action to bring a claim for contribution, indemnification or subrogation in respect of such Loss Payment against the Surviving Company or any such Person with respect thereto. (e) No Indemnified Party shall be entitled to recover any Losses relating to any matter arising under one provision of this Agreement to the extent that such Indemnified Party has already recovered the same Losses with respect to such matter pursuant to any other provision of this Agreement. (f) Notwithstanding anything else contained in this Agreement, “Losses” shall specifically exclude, and the Indemnified Parties shall not be entitled to indemnification for, any punitive damages or exemplary damages, except to the extent paid to any third party pursuant to a Third Party Claim. (g) Notwithstanding anything to the contrary in this Agreement, other than in the event of Fraud, the maximum amount that any Purchaser Indemnitee may recover from any Seller Indemnifying Party shall be the portion of the Merger Consideration actually received by such Seller Indemnifying Party. (h) Upon and after becoming aware of any event which is reasonably likely to give rise to Losses subject to indemnification under this Article 8, the applicable Indemnified Parties shall use, and, following the Closing, Purchaser shall, to the extent required under applicable Law, cause the Surviving Company and its Subsidiaries to use, commercially reasonable efforts to mitigate their respective Losses arising from such events. (i) Notwithstanding anything to the contrary, the Company Securityholders shall not be required to indemnify any Purchaser Indemnitee with respect to the existence, availability, amount, usability or limitations (or lack thereof) of or on any net operating loss, net operating loss carryforward, capital loss carryforward, Tax basis amount, or other Tax attributes (whether U.S. federal, state, local or foreign) of the Company (other than for any Taxes of the Company for a Pre-Closing Tax Period in connection with a breach of any of the representations or warranties contained in Section 3.14). Section 8.5 Notices. Any Purchaser Indemnitee or Seller Indemnitee claiming it may be entitled to indemnification under this Article 8 (the “Indemnified Party”) shall promptly give written notice (an “Indemnification Notice”) to the party against whom such indemnification is or could be


 
79 US-DOCS\157178066.13 sought (the “Indemnifying Party”) of such claim or potential claim for indemnification (a “Claim”) within thirty (30) days after learning of such Claim. Such Indemnification Notice shall contain, with respect to each Claim, such facts and information as are then reasonably available, the estimated amount of Losses, if reasonably practicable, and the basis for indemnification hereunder; provided, that failure to give a prompt Indemnification Notice hereunder shall not affect the applicable Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party actually suffers material prejudice by such failure. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of an Indemnification Notice that the Indemnifying Party disputes its liability to the Indemnified Party with respect to the Claims identified in such Indemnification Notice, such Claims shall be conclusively deemed an obligation of the Indemnifying Party hereunder. Section 8.6 Defense of Actions. If within thirty (30) days after receiving an Indemnification Notice from the Indemnified Party of any Claim based on any Proceeding, demand or assessment by any third party (a “Third Party Claim”) the Indemnifying Party gives written notice to the Indemnified Party that the Indemnifying Party disputes and intends to defend against such Third Party Claim at the Indemnifying Party’s own cost and expense, then the Indemnified Party shall permit the Indemnifying Party, at the Indemnifying Party’s cost and expense, to assume the defense of such Third Party Claim and to conduct such defense and to settle or otherwise dispose of the same, subject to the terms and provisions of this Section 8.6, and the Indemnified Party will reasonably cooperate in such defense; provided, that the Indemnifying Party shall not be entitled to assume control of such defense or to settle such Third Party Claim (unless otherwise agreed to in writing by the Indemnified Party) if (a) the Indemnifying Party fails to provide written confirmation to the Indemnified Party, within thirty (30) days after receiving written notice of the Third Party Claim from the Indemnified Party, of the Indemnifying Party’s election to assume control of the defense of such Third Party Claim; (b) the Third Party Claim relates to or arises in connection with any criminal or quasi criminal Proceeding; (c) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or involves a Material Customer or Material Supplier; (d) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (e) the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim as reasonably determined by the applicable Indemnifying Party; (f) the Third Party Claim is with respect to Taxes; or (g) the Indemnified Party reasonably believes that the Losses relating to the Third Party Claim would exceed the maximum amount that such Indemnified Party would then be entitled to recover under the applicable provisions of this Article 8 (collectively, the “Defense Conditions”); provided, further, however, that if the Indemnifying Party fails to give the Indemnified Party written notice that it will assume the defense of such Third Party Claim within thirty (30) days after receiving written notice thereof from the Indemnified Party, the Indemnified Party may assume its own defense of such Third Party Claim, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith to the extent such costs and expenses constitute indemnifiable Losses under this Article 8; provided, further, however, the Indemnified Party shall not have the right to compromise or settle such Third Party Claim without the consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall keep the Indemnified Party informed, on a reasonably current basis, of the status of any Third Party Claim for which it has assumed the defense and shall furnish the Indemnified Party with such documents and information filed or delivered in connection with such claim, liability or expense as the Indemnified Party may reasonably request. If the Indemnifying Party assumes control of the defense of any Third Party Claim, such Indemnifying Party may elect to consent to the entry of Judgment with respect to, settle or otherwise compromise such Third Party Claim only


 
80 US-DOCS\157178066.13 if the entry of such Judgment, settlement or compromise of such Third Party Claim (i) does not involve any injunctive relief or finding or admission of any violation of Law or admission of any wrongdoing by the Indemnified Party, (ii) involves only the payment of money damages which the applicable Indemnifying Party shall pay in full concurrently with such settlement or judgment, and (iii) provides for the full, complete and unconditional release of the applicable Indemnified Party from all Liabilities relating to such Third-Party Claim and does not otherwise impose injunctive, extraordinary or other forms of equitable relief on the Indemnified Party or any of its Affiliates. Notwithstanding anything herein to the contrary, the Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel and after written notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Third Party Claim; provided, however, that the reasonable and documented out-of-pocket fees and expenses of one (1) such separate counsel for the Indemnified Party shall be borne by the Indemnifying Party if (i) the Indemnifying Party has failed to assume the defense within the period provided herein or the Defense Conditions cease to be satisfied for any reason, (ii) there exists a conflict between the interests of the Indemnifying Party and the Indemnified Party or (iii) a defense exists for the Indemnified Party which is not available to the Indemnifying Party. Section 8.7 Calculation of Losses. (a) The amount of any Losses for which indemnification is provided under Section 8.2 or Section 9.6 shall be net of (i) any amounts actually received by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any non-Affiliate third party and (ii) any insurance proceeds actually received in connection with the matter giving rise to such Losses, in each case with respect to the forgoing clauses (i) and (ii), less any (A) reasonable and documented out-of- pocket costs and expenses, and (B) deductibles, premiums, and a reasonable estimate of the net present value of any future premium increases incurred in connection therewith (the preceding clauses (i) through (ii), collectively, “Net Recoveries”). Nothing in this Section 8.7 shall be deemed to (x) require an Indemnified Party to proceed or seek action or recovery from any third party as a requirement hereunder or as a condition to seeking or recovering indemnification from any Indemnifying Party hereunder, or (y) be construed or interpreted as a guaranty of any level or amount of insurance recovery with respect to any Losses hereunder or as a requirement to obtain or maintain any insurance or to make any claim for insurance as a condition to any indemnification hereunder, and no Seller Indemnifying Party shall have any right to subrogation under any insurance or third party indemnification agreement and each Seller Indemnifying Party, for itself and on behalf of all Seller Indemnifying Parties, hereby waives such rights, if any. If any Purchaser Indemnitee receives any Net Recoveries with respect to any Losses after a Seller Indemnifying Party has made a payment to a Purchaser Indemnitee with respect to such Losses, the Purchaser Indemnitee shall reimburse the Seller Indemnifying Party in an amount equal to such Net Recoveries, up to the amount of the Seller Indemnifying Party’s applicable payment. (b) Each of the representations and warranties that contains any “Material Adverse Effect,” “material,” “materially” or similar qualifications shall be read as though such qualifications were not contained therein for the purposes of determining whether a breach has occurred and the amount of Losses to which such Indemnified Party may be entitled under this Article 8; provided, however, that the disregarding of such qualifications and exceptions shall not apply to Section 3.7(b) (Absence of Certain Changes and Events) or in a definitional manner (e.g., Material Customer or Material Supplier).


 
81 US-DOCS\157178066.13 Section 8.8 Effect of Investigation. An Indemnified Party’s right to indemnification, reimbursement or other remedies based upon the representations, warranties, covenants and agreements of the Company or an Indemnifying Party, as applicable, shall not be affected by any investigation conducted or knowledge acquired (or capable of being acquired) at any time (whether before or after the execution and delivery of this Agreement or the Closing Date) by an Indemnified Party or its officers, directors, managers, employees, equityholders, agents or Representatives with respect to the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant or agreement or the waiver by the Indemnified Party of any condition based on the accuracy of any such representation or warranty or compliance with any such covenant or agreement. Section 8.9 Release of Escrow Amounts. (a) Subject to the terms of the Escrow Agreement, within two (2) Business Days following the first (1st) anniversary of the Closing Date, Purchaser and the Company Representative shall execute and deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to distribute to the Paying Agent (for further distribution to the Company Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures) the remaining balance of the Indemnity Escrow Account at such time, less the amounts, if any, attributable to any bona fide pending but unresolved claims brought by the Purchaser Indemnified Parties under this Article 8 (other than pursuant to Section 8.2(c)), with any amounts attributable to such unresolved claims to be distributed to the proper party once any Losses are agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article 8. (b) Subject to the terms of the Escrow Agreement and the provisions of Section 8.9(b)(ii) of the Company Disclosure Schedule, within two (2) Business Days following the earlier of (i) the first (1st) anniversary of the Closing Date, and (ii) the occurrence of any of the events set forth on Section 8.9(b)(ii) of the Company Disclosure Schedule, Purchaser and the Company Representative shall execute and deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to distribute to the Paying Agent (for further distribution to the Company Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures) the remaining balance of the Specific Indemnity Escrow Account at such time. Section 8.10 Exclusivity of Remedies. Absent Fraud, the sole recourse of the Purchaser Indemnitees in connection with any and all Losses incurred by the Purchaser Indemnitees as a result of any breach of any representation or warranty made by the Company in this Agreement or in any certificate delivered pursuant to this Agreement shall be pursuant to this Article 8. For the avoidance of doubt, nothing in this Agreement shall limit (a) any Person’s right to specifically enforce, or seek other forms of equitable relief, in accordance with the terms thereof, this Agreement and the Ancillary Agreements in accordance with their respective terms, (b) any Person’s rights under Section 2.14 or Section 9.10 or (c) the Purchaser Indemnitees’ rights under the R&W Policy. Notwithstanding anything else contained in this Agreement, nothing in this Agreement shall limit in any manner whatsoever any Person’s rights to pursue any and all available rights and/or remedies under any applicable Law against any Person with respect to Fraud.


 
82 US-DOCS\157178066.13 ARTICLE 9 TAX MATTERS Section 9.1 Proration of Straddle Period Taxes. For purposes of determining the portion of any Taxes that are payable with respect to any Straddle Period, the portion of any such Taxes that is attributable to the portion of such Straddle Period ending on the Closing Date shall be: (a) in the case of Taxes that are not ad valorem or property Taxes, deemed equal to the amount that would be payable if the relevant Straddle Period ended on the Closing Date; provided, that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on and including the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period; and (b) in the case of ad valorem or property Taxes, deemed to be the amount of such Taxes for the entire Straddle Period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the portion of the period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire period. Section 9.2 Cooperation. Purchaser, the Company and the Company Representative shall cooperate fully as and to the extent reasonably requested by any other party in connection with the preparation and filing of Tax Returns and any Tax Proceeding for a Pre-Closing Tax Period or Straddle Period. Such cooperation shall include the retention and (upon any other party’s request) the provision of records and information which are reasonably relevant to any such Tax Return or Tax Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder; provided, that Purchaser may redact portions of a Tax Return to the extent that such portions do not relate to the Company. Each of Purchaser and the Company Representative shall (a) retain any books and records in its possession with respect to Tax matters pertinent to the Company relating to any Pre-Closing Tax Period until the expiration of the statute of limitations (and, to the extent notified by any party, any extensions thereof) of the respective taxable periods, and abide by all record retention agreements entered into with any taxing authority and (b) give one another reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other so requests, allow the other to take possession of such books and records. Section 9.3 Pre-Closing Tax Returns. Purchaser shall prepare or cause to be prepared all Tax Returns of the Company required to be filed after the Closing Date for all Pre-Closing Tax Periods (other than Straddle Periods, which shall be governed by Section 9.4). Such Tax Returns shall be prepared on a basis consistent with past practice except to the extent otherwise required by applicable Law. In the case of income Tax Returns, no later than thirty (30) days prior to the due date for filing such Tax Returns, Purchaser shall deliver or cause to be delivered a draft of such Tax Returns, together with all supporting documentation and workpapers, to the Company Representative for its review and reasonable comment. Purchaser shall incorporate any reasonable comments to such Tax Returns received from the Company Representative at least five (5) Business Days prior to the due date (including extensions) for filing such Tax Return. If Purchaser agrees in writing with the Company Representative’s comments, Purchaser will cause such Tax Return (as revised to incorporate the Company Representative’s reasonable comments) to be timely filed and will provide a copy thereof to the Company Representative. If Purchaser does not agree in writing with the Company


 
83 US-DOCS\157178066.13 Representative’s comments, the parties will cooperate to resolve any disagreement prior to the due date for filing the Tax Return. If the parties have not resolved any disagreement prior to the due date, then (a) Purchaser will cause such Tax Return (as drafted by Purchaser) to be timely filed and will provide a copy thereof to the Company Representative, (b) the parties shall resolve any disagreement through the procedures provided in Section 2.14(c) and (c) upon resolution of any disagreement, the parties shall amend any Tax Return if necessary, and Purchaser shall file such amended Tax Return. Section 9.4 Straddle Period Returns. Purchaser shall prepare or cause to be prepared all Tax Returns of the Company for all Straddle Periods. Such Tax Returns shall be prepared on a basis consistent with past practice except to the extent otherwise required by applicable Law. In the case of income Tax Returns, no later than thirty (30) days prior to the due date for filing such Tax Returns, Purchaser shall deliver a draft of such Tax Returns, together with all supporting documentation and workpapers, to the Company Representative for its review and reasonable comment with respect to any Tax matters relating to the pre-Closing portion of a Straddle Period. Purchaser shall incorporate any reasonable comments to such Tax Returns received from the Company Representative at least five (5) Business Days prior to the due date (including extensions) for filing such Tax Return. If Purchaser agrees in writing with the Company Representative’s comments, Purchaser will cause such Tax Return (as revised to incorporate the Company Representative’s reasonable comments) to be timely filed and will provide a copy thereof to the Company Representative. If Purchaser does not agree in writing with the Company Representative’s comments, the parties will cooperate to resolve any disagreement prior to the due date for filing the Tax Return. If the parties have not resolved any disagreement prior to the due date, then (a) Purchaser will cause such Tax Return (as drafted by Purchaser) to be timely filed and will provide a copy thereof to the Company Representative, (b) the parties shall resolve any disagreement through the procedures provided in Section 2.14(c) and (c) upon resolution of any disagreement, the parties shall amend any Tax Return if necessary, and Purchaser shall file such amended Tax Return. Section 9.5 Transaction Deductions. Any Transaction Tax Deductions shall be deducted in the Pre-Closing Tax Period or, with respect to any Straddle Period, the portion of such Straddle Period ending on the Closing Date, to the extent that such Tax deductions are determined to be deductible under applicable Law in a Pre-Closing Tax Period on a “more likely than not” basis. Section 9.6 Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, conveyance, value added, recording, filing and other such non-income Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement (collectively, “Transfer Taxes”) shall be payable by Purchaser and one-half of such amount will be treated as a Transaction Expense. The Person(s) required to do so by applicable Law will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, fees and charges and, if required by applicable Law, Parent, the Company and/or the Company Securityholders (as applicable) will join in the execution of any such Tax Returns and other documentation. Each of Parent, the Company and the Company Securityholders agree to cooperate with the other parties in the filing of any returns with respect to the Transfer Taxes, including promptly supplying any information in its possession that reasonably necessary to complete such returns. Section 9.7 Tax Contests. If any Governmental Authority conducts any audit or investigation relating to the Company, Purchaser will have the sole right to represent the Company and control any such audit or investigation and provide any response required in connection therewith; provided, that the Company Representative may participate, at its sole cost and expense, in such


 
84 US-DOCS\157178066.13 proceedings to the extent that such proceedings relate to a Tax for which the Company Securityholders may be responsible and Purchaser shall not settle or compromise such proceedings without the prior written consent of the Company Representative (which consent shall not be unreasonably withheld, conditioned or delayed). Section 9.8 Tax Sharing Agreements. All sharing, Tax allocation, Tax indemnity agreements or similar agreements or arrangements (whether or not written) between the Company, on the one hand, and any Company Stockholder, on the other hand, shall be terminated as of the Closing Date and, after the Closing Date, the Company shall not be bound thereby or have any liability thereunder. Section 9.9 Post-Closing Tax Matters. Notwithstanding anything to the contrary, the determination of the amount of Taxes included in Pre-Closing Income Taxes, Closing Net Working Capital or any other Taxes for which the Company Securityholders may be responsible for under this Agreement shall not take into account (i) any actions by Purchaser or its Affiliates (including, after the Closing, the Company) taken outside the ordinary course of business following the Closing, (ii) the making, changing or revoking on or after the Closing of any material Tax election with respect to the Company that has retroactive effect to a Pre-Closing Tax Period (including any election under Section 336 or Section 338 of the Code); (iii) any amendment after the Closing of any material Tax Return with respect to the Company for a Pre-Closing Tax Period; (iv) except as provided in Section 9.10 with respect to Sales Taxes, the initiation of any voluntary contact (including through any voluntary disclosure program) with any Governmental Authority in respect of Taxes or Tax Returns of the Company for any Pre-Closing Tax Period; (v) the filing of any Tax Return of the Company with respect to any Pre-Closing Tax Period that is inconsistent with past practices of the Company; (vi) the surrender of any Tax refund, Tax credit or overpayment of Tax permitted under applicable Law with respect to a Pre-Closing Tax Period of the Company or (vii) without the prior written consent of the Company Representative, compromising or settling any Tax liability of the Company, in each case, to the extent any such action increases the amount of Taxes included in Pre-Closing Income Taxes, Closing Net Working Capital or the amount of any other Taxes for which the Company Securityholders are responsible for under this Agreement. Section 9.10 Sales Taxes. (a) The Sales Tax Escrow Amount shall be held exclusively for the payment of any unpaid sales taxes owed by the Company with respect to any Pre-Closing Tax Periods solely in connection with the matters described in Appendix A (collectively, “State and Local Sales Taxes”). (b) Purchaser shall (or shall cause the Surviving Company to), file a request for a private letter ruling on behalf of the Surviving Company with respect to Chicago PPLT Taxes (as defined in Appendix A) (the “PLR Request”) within ninety (90) days of the Closing Date. Purchaser shall deliver to Company Representative a copy of the PLR Request, for Company Representative’s review and comment, within sixty (60) days of the Closing Date (and Purchaser shall consider in good faith, but shall not be obligated to reflect, any such comments). In the event Purchaser or the Surviving Company receives a favorable private letter ruling (a “Favorable PLR”), Purchaser and the Company Representative shall, within two (2) Business Days of receiving the Favorable PLR, execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to pay the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures an amount equal to the Chicago PPLT Tax Escrow Amount.


 
85 US-DOCS\157178066.13 (c) Purchaser shall determine the amount of unpaid State and Local Sales Taxes, and, to the extent a Favorable PLR is not received, any Chicago PPLT Taxes (as defined in Appendix A), and shall file any applicable Tax Returns or pursue any voluntary disclosure or similar procedures with the applicable Governmental Authorities (collectively, a “VDA”) in Purchaser’s sole discretion; provided that, Purchaser (1) shall notify the Company Representative prior to initiating any contact with any applicable Governmental Authority with respect to any VDA, (2) shall provide to the Company Representative copies of all material correspondence received from any such Governmental Authority relating to each VDA, and (3) shall permit the Company Representative to reasonably participate in each VDA and review and comment on all written submissions and filings (and proposed filings) to any relevant Governmental Authority (at Company Representative’s own expense); provided, that Purchaser shall consider any such comments in good faith (but shall not be obligated to reflect or otherwise act upon such comments made by the Company Representative in connection with any VDA, written submissions or filings (or proposed filings). (d) In the event that there are any State and Local Sales Taxes (or, solely to the extent applicable, Chicago PPLT Taxes) shown as due with respect to any VDA, as applicable, or otherwise or that the Purchaser or the Surviving Company have otherwise paid in connection with a VDA, as applicable, or otherwise, in each case, within twelve (12) months after the Closing Date (the “Sales Tax Remediation Date”), within two (2) Business Days subsequent to the Sales Tax Remediation Date, Purchaser and the Company Representative shall execute and deliver a joint written instructions to the Escrow Agent instructing the Escrow Agent to (a) pay to Purchaser out of the Sales Tax Escrow Account an amount equal to all such amounts shown or paid, and (b) if the amount of funds in the Sales Tax Escrow Account exceeds all such amounts shown or paid, then such joint written instructions to the Escrow Agent shall further instruct the Escrow Agent to distribute the remaining funds in the Sales Tax Escrow Account to the Paying Agent for further distribution to the Company Securityholders in accordance with their respective Pro Rata Percentages and the Post-Closing Distribution Procedures. For the avoidance of doubt, the Company Securityholders shall not be responsible for any State and Local Sales Taxes and/or Chicago PPLT Taxes (to the extent a Favorable PLR is not obtained) to the extent the State and Local Sales Taxes and/or Chicago PPLT Taxes (to the extent a Favorable PLR is not obtained) exceed (individually or in the aggregate) the Sales Tax Escrow Amount, and the sole and exclusive remedy of Purchaser for any State and Local Sales Taxes and/or Chicago PPLT Taxes (to the extent a Favorable PLR is not obtained) will be pursuant to the obligations set forth in this Section 9.10. ARTICLE 10 COMPANY REPRESENTATIVE Section 10.1 Authority. By the adoption of the Merger, and by receiving the benefits thereof, including any consideration payable hereunder, each Company Securityholder shall be deemed to have approved Shareholder Representative Services LLC as of the Closing as the Company Representative and as the representative, agent and attorney-in-fact of the Company Securityholders for all purposes in connection with this Agreement and the agreements ancillary hereto, including to execute any and all documents on behalf of the Company Securityholders, and to take any other actions on behalf of the Company Securityholders which may be required, appropriate, helpful or allowed pursuant to this Agreement and any Ancillary Agreement to which the Company Representative is a party, in each case, in order to consummate the transactions contemplated by this Agreement and, if applicable, perform their respective obligations hereunder or thereunder before, at or following the Effective Time (as the case may be).


 
86 US-DOCS\157178066.13 Section 10.2 Authority. Without limiting the generality of the foregoing, the Company Representative shall have the full and exclusive authority to (a) agree with Purchaser with respect to any matter reasonably deemed necessary by the Company Representative in connection with this Agreement or any Ancillary Agreement to which the Company Representative is a party calling for the agreement of the Company Securityholders, give and receive notices on behalf of the Company Securityholders, and act on behalf of the Company Securityholders in connection with any matter as to which the Company Securityholders are or may be obligated under this Agreement or any such Ancillary Agreements, all in the reasonable discretion of the Company Representative, (b) execute and deliver all documents contemplated by this Agreement to be executed by the Company Representative in its capacity as such, (c) authorize distribution to Purchaser or the Company Securityholders (as the case may be) of all or a portion of the Price Adjustment Escrow Amount, the Indemnity Escrow Amount, the Specific Indemnity Amount, the Sales Tax Escrow Amount and the RSU Eligible Equity Adjustment Escrow Amount pursuant to the applicable terms hereof, and take any other actions to be taken by the Company Representative pursuant to the Escrow Agreement; and (e) take all actions necessary or desirable in connection with the performance of obligations under Article 2 and Article 8, including to withhold funds (in addition to funds held in the Expense Fund) for satisfaction of expenses or other liabilities or obligations. Section 10.3 Binding Decisions; Rights. Subject to this Article 10, decisions by the Company Representative within the scope of its authority granted pursuant to this Article 10 shall be binding upon all Company Securityholders, and no Company Securityholder shall have the right to contest the same. A decision, act, consent or instruction of the Company Representative with respect to matters within the scope of its authority granted pursuant to this Article 10 shall constitute a decision of all Company Securityholders and shall be final, binding and conclusive upon the Company Securityholders and the Purchaser Covered Parties may rely upon any such decision, act, consent or instruction of the Company Representative as being the decision, act, consent or instruction of each and every Company Stockholder. The Company Securityholders shall cooperate with the Company Representative and any accountants, attorneys or other agents whom it may retain to assist in carrying out its duties hereunder. The Company Representative may communicate with the Company Securityholders or any other Person concerning its responsibilities hereunder, but it is not required to do so. Section 10.4 Resignation. The Company Representative may resign at any time by notifying in writing Purchaser and the Company Securityholders. If the Company Representative resigns, a successor Company Representative shall be promptly appointed with the consent of the Company Stockholders which held a majority of the shares of voting Company Stock immediately prior to the Effective Time (as determined on an as-converted to Common Stock basis). Notice of the appointment of a successor Company Representative shall be given promptly to Purchaser. Such successor Company Representative shall exercise the rights and powers of and be entitled to the indemnity, reimbursement and other benefits of the original Company Representative. Section 10.5 Exculpation; Indemnification. The Company Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Company Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Securityholders shall indemnify the Company Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered


 
87 US-DOCS\157178066.13 or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Company Representative, the Company Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Company Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders; provided, that while the Company Representative may be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Company Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Company Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Company Representative or the termination of this Agreement Section 10.6 Expense Fund. The Expense Fund will be used for any expenses incurred by the Company Representative. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Company Representative any ownership right that they may otherwise have had in any such interest or earnings. The Company Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing. Once the Company Representative determines, in its sole discretion, that the Company Representative will not incur any additional expenses in its capacity as the Company Representative, then the Company Representative will deliver the remaining unused Expense Fund, if any, to the Paying Agent for further distribution to the Company Securityholders pursuant to the Post- Closing Distribution Procedures. ARTICLE 11 GENERAL PROVISIONS Section 11.1 Notices. Any notices, demands or other communication required to be sent or given hereunder by any of the parties shall in every case be in writing and shall be deemed properly served if (a) delivered personally to the recipient, (b) sent to the recipient by reputable express courier service (charges paid) or mailed to the recipient by registered or certified mail, return receipt requested and postage paid or (c) if given by electronic mail to the e-mail addresses set forth in this Section 11.1. Date of service of such notice shall be (i) the date such notice is personally delivered, (ii) three (3) Business Days after the date of mailing if sent by certified or registered mail, (iii) one (1) Business Day after date of delivery to the overnight courier if sent by overnight courier or (iv) at the time of receipt if given by electronic mail (provided that no “bounceback” or other notice of non-delivery is automatically generated). Such notices, demands and other communications shall be sent to the addresses indicated below or such other address or to the attention of such other person as the recipient has indicated by prior written notice to the sending party in accordance with this Section 11.1. If to Purchaser or Surviving Company:


 
88 US-DOCS\157178066.13 Alkami Technology, Inc. 5601 Granite Parkway, Suite 120 Plano, Texas 75204 Attention: Douglas A. Linebarger, Chief Legal Officer E-mail: dlinebarger@alkami.com with a copy (which will not constitute notice) to: Hunton Andrews Kurth LLP 1445 Ross Avenue, Suite 3700 Dallas, Texas 75202 Attention: Gregory J. Schmitt, Esq. E-mail: gschmitt@huntonak.com If to Company (prior to Closing): Fin Technologies, Inc. 1231-1239 Broadway, Room 307 New York, NY 10001 with a copy (which will not constitute notice) to: Latham & Watkins LLP 1271 Avenue of the Americas New York, NY 10020 Attention: J. Peyton Worley; Brian Duff Email: Peyton.Worley@lw.com; Brian.Duff@lw.com If to Company Representative: Shareholder Representative Services LLC 950 17th Street, Suite 1400 Denver, CO 80202 Attention: Managing Director Email: deals@srsacquiom.com Telephone: (303) 648-4085 with a copy (which will not constitute notice) to: Latham & Watkins LLP 1271 Avenue of the Americas New York, NY 10020 Attention: J. Peyton Worley; Brian Duff Email: Peyton.Worley@lw.com; Brian.Duff@lw.com Section 11.2 Amendment. This Agreement may not be amended, supplemented or otherwise modified except in a written document signed by each of (a) the Company, the Company Representative and Purchaser prior to the Closing, and (b) the Company Representative and Purchaser from and after the Closing.


 
89 US-DOCS\157178066.13 Section 11.3 Waiver and Remedies. At any time prior to the Effective Time, any party may (a) extend the time for performance of any of the obligations or other acts of any other party to this Agreement for the benefit of such first party, (b) waive any inaccuracies in the representations and warranties of any other party to this Agreement contained in this Agreement made to such first party or (c) waive compliance with any of the covenants or conditions for the benefit of such party contained in this Agreement. Any such extension or waiver by any party to this Agreement will be valid only if set forth in a written document signed on behalf of the party or parties against whom the extension or waiver is to be effective. No extension or waiver will apply to any time for performance, breach of any representation or warranty, or noncompliance with any covenant or condition, as the case may be, other than that which is specified in the written extension or waiver. No failure or delay by any party in exercising any right or remedy under this Agreement or any of the documents delivered pursuant to this Agreement, and no course of dealing between the parties, operates as a waiver of such right or remedy, and no single or partial exercise of any such right or remedy precludes any other or further exercise of such right or remedy or the exercise of any other right or remedy. Section 11.4 Entire Agreement. This Agreement (including the Exhibits and Schedules hereto), the Ancillary Agreements, the Confidentiality Agreement, and the documents and instruments referred to in this Agreement that are to be delivered at or prior to the Closing in connection with the transactions contemplated hereby constitutes the entire agreement among the parties with respect to the subject matter hereof and thereof, and supersedes any prior understandings, agreements or representations by or among the parties, or any of them, written or oral, with respect to the subject matter hereof and thereof. Section 11.5 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto, whether by operation of law or otherwise, without the prior written consent of (a) the Company (prior to the Closing) or the Company Representative (following the Closing) for any assignment desired to be made by Purchaser, MergerSub or (following the Closing), the Surviving Company, or (b) Purchaser for any assignment desired to be made by the Company at any time prior to the Closing, or by the Company Representative (following the Closing); provided, that Purchaser and MergerSub (a) may assign their rights, interests and obligations hereunder to any of their Affiliates provided that neither Purchaser nor MergerSub shall be released from their respective obligations hereunder notwithstanding any such assignment unless otherwise agreed in writing by the Company prior to the Closing or the Company Representative following the Closing, and (b) may collaterally assign any or all of their rights, interests and obligations hereunder to any provider of debt financing. Section 11.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law or rule in any jurisdiction, in any respect, such invalidity shall not affect the validity, legality and enforceability of any other provision or any other jurisdiction and, the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby, all of which shall remain in full force and effect, and the affected term or provision shall be modified to the minimum extent permitted by law so as to achieve most fully the intention of this Agreement. Section 11.7 Exhibits and Schedules. The Exhibits and Schedules to this Agreement are incorporated herein by reference and made a part of this Agreement.


 
90 US-DOCS\157178066.13 Section 11.8 Interpretation. In the negotiation of this Agreement, each party has received advice from its own attorney. The language used in this Agreement is the language chosen by the parties to express their mutual intent, and no provision of this Agreement will be interpreted for or against any party because that party or its attorney drafted the provision. Section 11.9 Expenses. Except as set forth in this Agreement, whether or not the transactions contemplated by this Agreement are consummated, each party will pay its own direct and indirect expenses incurred by it in connection with the preparation and negotiation of this Agreement and the consummation of the transactions contemplated by this Agreement, including all fees and expenses of its advisors and representatives. Purchaser and the Company shall each pay one-half of all costs, expenses and fees of the Paying Agent and the Escrow Agent. Section 11.10 Governing Law. Unless any Exhibit or Schedule specifies a different choice of law, this Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of Delaware, including its statutes of limitations. Section 11.11 Specific Performance. (a) Subject to Section 7.2(c), Section 11.11(b) and Section 11.11(c), the parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform their respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such provisions. The parties accordingly agree that, prior to the termination of this Agreement pursuant to Section 7.1, in addition to any other remedy to which a party is entitled at law or in equity, a party shall be entitled to an injunction or injunctions, specific performance and other equitable relief to remedy breaches or threatened breaches of this Agreement (without posting a bond or other security) and to enforce specifically the terms and provisions of this Agreement, and that any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy, subject in all cases to the last sentence of Section 11.11(c). Each party expressly waives any requirement that the other party obtain any bond or provide any indemnity in connection with any action seeking injunctive relief or specific enforcement of the provisions of this Agreement. (b) Notwithstanding anything in this Agreement to the contrary, the parties hereby acknowledge and agree that the Company shall be entitled to specific performance to cause Purchaser to effect the Closing only if (i) all of the conditions to the Closing set forth in Section 6.1 have been and continue to remain satisfied or waived (other than those conditions that by their nature are to be satisfied by the delivery of documents or the taking of any other action at the Closing), (ii) the Financing is available to be funded at the Closing and has been funded in accordance with its terms or will be funded in accordance with its terms at the Closing, and (iii) the Company has irrevocably confirmed to Purchaser in writing that (A) all of the conditions set forth in Section 6.2 have been satisfied or waived (other than those conditions that by their nature are to be satisfied by the delivery of documents or the taking of any other action at the Closing), and (B) the Company is prepared to


 
91 US-DOCS\157178066.13 consummate the Closing and, if the Financing is funded, will take such actions that are within its control to cause the Closing to occur. (c) Subject to Section 11.11(b), until such time as Purchaser pays the Termination Fee, Sellers may pursue both a grant of specific performance under this Section 11.11 and seek the payment of the Termination Fee under Section 7.2(b). Under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance to cause the consummation of the Closing, on the one hand, and payment of the Termination Fee, on the other hand. (d) Notwithstanding anything in this Agreement to the contrary, to the extent any party hereto brings any Proceeding to enforce specifically the performance of the terms and provisions of this Agreement (other than any Proceeding to enforce specifically any provision that by its terms requires performance after the Closing or expressly survives termination of this Agreement), the Outside Date shall automatically be extended to (i) the fifth (5th) Business Day following the resolution of such Proceeding, or (ii) such other time period established by the court presiding over such Proceeding. Section 11.12 Jurisdiction and Service of Process. EACH PARTY AGREES THAT ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE DELAWARE COURT OF CHANCERY, OR IN THE EVENT (BUT ONLY IN THE EVENT) THAT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH PROCEEDING, THE SUPERIOR COURT OF DELAWARE OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND EACH OF THE PARTIES HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR ITSELF AND WITH RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, FOR THE PURPOSE OF ANY SUCH PROCEEDING. A FINAL JUDGMENT IN ANY SUCH PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH PARTY AGREES NOT TO COMMENCE ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY EXCEPT IN THE COURTS DESCRIBED ABOVE (OTHER THAN ACTIONS IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE ANY JUDGMENT, DECREE OR AWARD RENDERED BY ANY SUCH COURT IN DELAWARE AS DESCRIBED ABOVE), IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY SUCH COURT, AND HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM OR DOES NOT HAVE JURISDICTION OVER ANY PARTY. EACH PARTY AGREES THAT SERVICE OF SUMMONS AND COMPLAINT OR ANY OTHER PROCESS THAT MIGHT BE SERVED IN ANY ACTION OR PROCEEDING MAY BE MADE ON SUCH PARTY BY SENDING OR DELIVERING A COPY OF THE PROCESS TO THE PARTY TO BE SERVED AT THE ADDRESS OF THE PARTY (OR IN THE CASE OF ANY COMPANY SECURITYHOLDER THE COMPANY REPRESENTATIVE’S ADDRESS) AND IN THE MANNER PROVIDED FOR THE GIVING OF NOTICES IN SECTION 11.1. NOTHING IN THIS SECTION, HOWEVER, SHALL AFFECT THE


 
92 US-DOCS\157178066.13 RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. Section 11.13 Waiver of Jury Trial. Each of the parties knowingly, voluntarily and irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the transactions contemplated by this Agreement or the actions of any party to this Agreement in negotiation, execution and delivery, performance or enforcement of this Agreement. Section 11.14 Counterparts. The parties may execute this Agreement in multiple counterparts, each of which constitutes an original as against the party that signed it, and all of which together constitute one agreement. This Agreement is effective upon delivery of one executed counterpart from each party to the other parties. The signatures of all parties need not appear on the same counterpart. Signatures may be affixed manually, by facsimile, email or in any other electronic format (including “.pdf,” “.tif” or “.jpg”) and other electronic signatures or imprints and electronically transmitted (including DocuSign and AdobeSign). Section 11.15 Third Parties. Except as set forth in Section 5.7, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any Person, other than the parties to this Agreement and their respective permitted successors and assigns, any rights or remedies under or by reason of this Agreement. Section 11.16 Non-Recourse. Subject to the terms and conditions of this Agreement and without limiting any Person’s ability to seek recourse under the express terms of any Ancillary Agreement or the Confidentiality Agreement, each of the parties hereto acknowledges and agrees on such party’s own behalf and on behalf of such party’s respective Affiliates, that no former, current or future direct or indirect equity holders, controlling Persons, directors, managers, officers, employees, legal counsel, financial advisors, agents, representatives, Affiliates, members, general or limited partners, successors or assignees (or any former, current or future equity holder, controlling Person, director, manager, officer, employee, legal counsel, financial advisors, agent, representative, Affiliate, member, general or limited partner, successor or assignee of any of the foregoing) (each, a “Non- Recourse Party”) that is not otherwise a party to this Agreement or any Ancillary Agreement (as applicable), shall have any liability relating to this Agreement, the Ancillary Agreements or any of the transactions contemplated hereby or thereby, other than for Fraud; provided, that in no event shall any Person be liable for the Fraud of any other Person, and a claim for Fraud may only be asserted against the Party that committed such Fraud. Notwithstanding the foregoing, this Section 11.16 shall not apply to Article 10, which shall be binding upon, and enforceable by the Company Representative against, the Company Securityholders in its entirety. [Signature Page Follows]


 
[Signature Page to Agreement and Plan of Merger] The parties have executed and delivered this Agreement as of the date indicated in the first sentence of this Agreement. ALKAMI TECHNOLOGY, INC. By: /s/ Douglas Linebarger Name: Douglas Linebarger Title: Chief Legal Officer MCW MERGERSUB, INC. By: /s/ Douglas Linebarger Name: Douglas Linebarger Title: Chief Legal Officer FIN TECHNOLOGIES, INC. By: /s/ Nathaniel Harley Name: Nathaniel Harley Title: Chief Executive Officer SHAREHOLDER REPRESENTATIVE SERVICES LLC By: /s/ Sam Riffe Name: Sam Riffe Title: Managing Director 124521.0000008 DMS 309906220v11


 
EX-10.1 3 exhibit101-thirdamendmen.htm EX-10.1 exhibit101-thirdamendmen
Execution Version 1 sf-6292949.7 THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT This Third Amendment to Amended and Restated Credit Agreement (this “Amendment”) dated and effective as of February 27, 2025 by and among ALKAMI TECHNOLOGY, INC., a Delaware corporation (the “Borrower”), the Guarantors party hereto, the several banks and other financial institutions or entities party hereto (the “Lenders”), and SILICON VALLEY BANK, a division of First-Citizens Bank & Trust Company (“SVB”), as the administrative agent and collateral agent for the Lenders (SVB, in such capacity, the “Administrative Agent”), the Issuing Lender and the Swingline Lender. W I T N E S S E T H: WHEREAS, the Borrower, the Administrative Agent, the Issuing Lender, the Swingline Lender and the Lenders party thereto are party to that certain Amended and Restated Credit Agreement dated as of April 29, 2022 (as amended, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”); and WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent amend the Credit Agreement to, among other things, increase the amount of the Revolving Commitments to $225,000,000, subject to the terms and conditions of this Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Capitalized Terms. All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Credit Agreement or in the other Loan Documents referred to in the recitals hereto, as applicable. 2. Amendments to the Credit Agreement. (a) Conformed Credit Agreement. Effective as of the Third Amendment Effective Date, the Credit Agreement (excluding the exhibits and schedules thereto) is hereby amended to delete or move the stricken text (indicated textually in the same manner as the following examples: stricken text or moved text), as applicable and to add or move the double underlined text (indicated textually in the same manner as the following examples: added text or moved text) as set forth in the in the pages of the Credit Agreement attached as Annex A hereto. (b) Amendment to Schedule 1.1A of the Credit Agreement. Schedule 1.1A of the Credit Agreement is hereby amended and restated in the form annexed hereto as Annex B. 3. Conditions Precedent to Effectiveness. The effectiveness of this Amendment shall be subject to the prior or concurrent satisfaction of each of the following conditions precedent (the date on which such conditions are satisfied, the “Third Amendment Effective Date”): (a) Loan Documents. The Administrative Agent shall have received each of the following: (i) this Amendment, duly executed and delivered by the Administrative Agent, the Loan Parties and the Lenders;


 
2 sf-6292949.7 (ii) the letter agreement dated as of February 3, 2025 (the “Third Amendment Fee Letter”), duly executed and delivered by the Administrative Agent and the Borrower; and (iii) if required by any Revolving Lender, the Administrative Agent shall have received a Revolving Loan Note (or amendment to any existing Revolving Loan Note) duly executed and delivered by the Borrower in favor of such Revolving Lender. (b) Approvals. All Governmental Approvals and consents and approvals of, or notices to, any other Person (including the holders of any Capital Stock issued by any Loan Party) required in connection with the execution and performance of this Amendment, the other Loan Documents, the continuing operations of the Group Members, the operations of the Group Members as expected to result from the consummation of the transactions contemplated hereby, shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that could reasonably be expected to restrain, prevent or otherwise impose burdensome conditions on the financing contemplated hereby. (c) Secretary’s or Managing Member’s Certificates; Certified Operating Documents; Good Standing Certificates. The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date and executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially in the form of Exhibit C of the Credit Agreement, with appropriate insertions and attachments, including (i) the Operating Documents of such Loan Party certified, in the case of formation documents, as of a recent date by the secretary of state or similar official of the relevant jurisdiction of organization of such Loan Party, (ii) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform this Amendment and the other Loan Documents to which such Loan Party is party, (iii) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute this Amendment and the other Loan Documents on behalf of such Loan Party, (iv) a long form good standing certificate for each Loan Party from its respective jurisdiction of organization, and (v) a certificate of foreign qualification from each jurisdiction where the failure of any Loan Party to be qualified could reasonably be expected to have a Material Adverse Effect. (d) No Material Adverse Effect. There shall not have occurred since December 31, 2023 any event or condition that has had or could reasonably be expected to have a Material Adverse Effect. (e) No Default; Financial Covenants. Immediately after giving pro forma effect to this Amendment, the Increase in the Revolving Commitments on the Third Amendment Effective Date and the use of any proceeds thereof on the Third Amendment Effective Date (and assuming that such Increased Revolving Commitments are fully drawn on the Third Amendment Effective Date), (i) no Default or Event of Default shall have occurred and be continuing at the time of such Increase and (ii) the Borrower shall be in compliance with the financial covenants set forth in Section 7.1 of the Credit Agreement after giving pro forma effect to this Amendment as of the end of the most recently ended month and quarter for which financial statements are internally available to the Loan Parties prior to such Increase, and the Borrower shall have delivered to the Administrative Agent (which shall promptly


 
3 sf-6292949.7 provide to the Lenders) a Compliance Certificate evidencing compliance with the requirements of this Section 3(e); (f) Representations and Warranties. Each of the representations and warranties made by each Loan Party in or pursuant to any Loan Document (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of the Third Amendment Effective Date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects (or all respects, as applicable) as of such earlier date. (g) [Reserved.] (h) Legal Opinion. The Administrative Agent shall have received the executed legal opinion of Hunton Andrews Kurth LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent. Such legal opinions shall cover such matters incident to the transactions contemplated by this Amendment and the other Loan Documents as the Administrative Agent may reasonably require. (i) Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer. (j) Lien Searches. The Administrative Agent shall have received the results of recent lien, judgment and litigation searches reasonably required by the Administrative Agent, and such searches shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3. (k) Intellectual Property Searches. The Administrative Agent shall have received the results of a recent intellectual property search (including searches with the United States Patent and Trademark Office and Copyright Office) with respect to each of the Loan Parties, with the results of such searches to be satisfactory to the Administrative Agent. (l) Patriot Act, etc. The Administrative Agent and each Lender shall have received, prior to the Third Amendment Effective Date, all documentation and other information requested to comply with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party. For purposes of determining compliance with the conditions specified in this Section 3, each Lender that has executed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter either sent (or made available) by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender, 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 Third Amendment Effective Date specifying such Lender’s objection thereto and either such objection shall not have been withdrawn by notice to the Administrative Agent to that effect on or prior to the Third Amendment Effective Date or, if any extension of credit on the Third Amendment Effective Date has been requested, such


 
4 sf-6292949.7 Lender shall not have made available to the Administrative Agent on or prior to the Third Amendment Effective Date such Lender’s Revolving Percentage of such requested extension of credit. (m) Fees. The Borrower shall have paid all fees and expenses required to be paid as a condition to an Increase, including, without limitation, those set forth in the Third Amendment Fee Letter, and the expenses of the Administrative Agent pursuant to Section 5 below. 4. Representations and Warranties. Each Loan Party hereby represents and warrants to the Administrative Agent and the Lenders on behalf of themselves and the other Group Members as follows: (a) This Amendment is, and each other Loan Document to which it is or will be a party, when executed and delivered by each Loan Party that is a party thereto, will be the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally. (b) The representations and warranties made by each Loan Party in or pursuant to any Loan Document (i) that is qualified by materiality is true and correct, and (ii) that is not qualified by materiality, is true and correct in all material respects as of the date hereof except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty is true and correct in all material respects (or all respects, as applicable) as of such earlier date. (c) The execution and delivery by each Loan Party of this Amendment and the performance by the Borrower of its obligations under the Credit Agreement, as amended by this Amendment, (i) have been duly authorized by all necessary organizational action on the part of such Loan Party and (ii) will not (A) violate any provisions of the certificate of incorporation or certificate of formation, as applicable, or by-laws or operating agreement, as applicable, of such Loan Party or (B) constitute a violation by such Loan Party of any material applicable law. (d) No Default or Event of Default has occurred and is continuing as of the Third Amendment Effective Date. 5. Payment of Costs and Fees. The Borrower shall pay to the Administrative Agent all reasonable and documented out-of-pocket costs, expenses, and fees and charges of every kind in connection with the preparation, negotiation, execution and delivery of this Amendment and any documents and instruments relating hereto (which costs include, without limitation, the reasonable and documented fees and expenses of any attorneys retained by the Administrative Agent). 6. New Lender and Settlement. (a) As of the Third Amendment Effective Date, the parties hereto hereby agree and acknowledge that, by executing this Amendment, JPMorgan Chase Bank, N.A. (the “New Lender”) shall become a Lender under the Credit Agreement and the other Loan Documents with a Revolving Commitment as set forth on Schedule 1.1A to the Credit Agreement (as amended by this Amendment). The New Lender (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment


 
5 sf-6292949.7 and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (B) it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and shall have the obligations and rights of a Lender thereunder with a Commitment as set forth on Schedule 1.1A to the Credit Agreement (as amended hereby), (C) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and become a Lender under the Credit Agreement, and (D) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and become a Lender under the Credit Agreement; and (ii) agrees that (A) it will, independently and without reliance on any of the Administrative 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 decisions in taking or not taking action under the Loan Documents and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. (b) On the Third Amendment Effective Date, the New Lender agrees to pay to the Administrative Agent (which may take the form of such Lender overfunding any Revolving Loans requested on the Third Amendment Effective Date or such other procedure reasonably determined by the Administrative Agent), for the account of the Revolving Lenders, the amount necessary to ensure that the outstanding principal amount of the Revolving Loans and participations hereunder in Letters of Credit and participations hereunder in Swingline Loans of each Revolving Lender shall equal each Revolving Lender’s respective Revolving Percentages and L/C Percentages. 7. Choice of Law, etc. This Amendment and the rights of the parties hereunder, shall be determined under, governed by, and construed in accordance with the internal laws (and not the conflict of law rules) of the State of New York. The provisions of Section 10.2 (Notices), Section 10.5 (Expenses; Indemnity; Damage Waiver), Section 10.11 (Severability) and Section 10.14 (Submission to Jurisdiction; Waivers) of the Credit Agreement are incorporated herein by reference mutatis mutandis with the same force and effect as if expressly written herein 8. Counterpart Execution. This Amendment may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Amendment by signing any such counterpart. Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Amendment. 9. Effect on Loan Documents. (a) The Credit Agreement, as amended hereby, and each of the other Loan Documents shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability of all of the Liens heretofore granted, pursuant to and in connection with the Guarantee and Collateral Agreement or any other Loan Document to the Administrative Agent on behalf and for the benefit of the Secured Parties, as collateral security for the obligations under the Loan Documents in accordance with their respective


 
6 sf-6292949.7 terms, and acknowledges that all of such Liens, and all collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from and after the date hereof. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability of the appointment of the Administrative Agent as attorney-in-fact under each applicable Loan Document. The execution, delivery, and performance of this Amendment shall not operate as a novation of any Obligations under the Credit Agreement or, except as expressly set forth herein, as a modification or waiver of any right, power, or remedy of the Administrative Agent or any Lender under the Credit Agreement, the Guarantee and Collateral Agreement or any other Loan Document. The amendments, consents, modifications and other agreements herein are limited to the specifics hereof (including facts or occurrences on which the same are based), shall not apply with respect to any facts or occurrences other than those on which the same are based, shall not excuse any non-compliance with the Loan Documents, and shall not operate as a consent or waiver to any matter under the Loan Documents. Except for the amendments to the Credit Agreement expressly set forth herein, the Credit Agreement, the Guarantee and Collateral Agreement and other Loan Documents shall remain unchanged and in full force and effect. To the extent any terms or provisions of this Amendment conflict with those of the Credit Agreement or other Loan Documents, the terms and provisions of this Amendment shall control. (b) To the extent that any terms and conditions in any of the Loan Documents shall contradict or be in conflict with any terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit Agreement, as modified or amended hereby. (c) This Amendment is a Loan Document. 10. Entire Agreement. This Amendment, and terms and provisions hereof, the Credit Agreement and the other Loan Documents constitute the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior or contemporaneous amendments or understandings with respect to the subject matter hereof, whether express or implied, oral or written. 11. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. [Signature pages follow]


 
In TVnnpss WIIEREOF, the parties heneto have caused this Anrendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. BORROWER: ALKAMI TECHNOLOGY, INC. t By: Name: Title: Chief Financial Officer and Treasurer GUARAI\TORS: ALI(AMI ACH ALERT, LLC By: Name: Title: Chief Financial Officer and Treasurer ALI(AIvfl lr{K LLC By: Name: HiI Title: Chief Financial Officer and Trpasurer lSignanue Page to Third Anendment to Ameoded and Resated Crcdit Agreement]


 
SEGMINT INC. By: Name: Title: Chief Financial Officer and Treasurer [Signature Page to Thid Amendment to Amended and Resated Credit AgreementJ


 












[Signature Page to Third Amendment to Amended and Restated Credit Agreement] Canadian Imperial Bank of Commerce, as a Lender By: Name: Jonathan Schupack Title: Assistant General Manager


 
[Signature Page to Third Amendment to Amended and Restated Credit Agreement] Canadian Imperial Bank of Commerce, as a Lender By: Name: Title: John Turner Assistant General Manager


 
sf-6292949.7 Annex A: Conformed Credit Agreement [See Attached]


 
Conformed through SecondThird Amendment Execution Version ny-2857439.1-2857439.11 SENIOR SECURED CREDIT FACILITIES AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 29, 2022, among ALKAMI TECHNOLOGY, INC., as the Borrower, THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO, SILICON VALLEY BANK, A DIVISION OF FIRST-CITIZENS BANK & TRUST COMPANY, as Administrative Agent, Issuing Lender, Swingline Lender, and Joint Lead Arranger COMERICA BANK, as Joint Lead Arranger and CANADIAN IMPERIAL BANK OF COMMERCE, as Documentation Agent


 
Table of Contents Page -i- ny-2857439.1-2857439.11 SECTION 1 DEFINITIONS 2 1.1 Defined Terms 2 1.2 Other Definitional Provisions. 36 1.3 Rounding 37 1.4 Rates 37 SECTION 2 AMOUNT AND TERMS OF COMMITMENTS 37 2.1 Term Commitments 37 2.2 Procedure for Term Loan Borrowing 37 2.3 Repayment of Term Loans 38 2.4 Revolving Commitments. 38 2.5 Procedure for Revolving Loan Borrowing 38 2.6 Swingline Commitment 39 2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans. 39 2.8 Overadvances 41 2.9 Fees. 42 2.10 Termination or Reduction of Revolving Commitments. 42 2.11 Optional Loan Prepayments. 43 2.12 Mandatory Prepayments. 43 2.13 Conversion and Continuation Options. 44 2.14 Limitations on SOFR Tranches 45 2.15 Interest Rates and Payment Dates. 45 2.16 Computation of Interest and Fees; Conforming Changes. 45 2.17 Inability to Determine Interest Rate; Benchmark Replacement Setting 46 2.18 Pro Rata Treatment and Payments. 48 2.19 Illegality; Requirements of Law. 51 2.20 Taxes. 52 2.21 Indemnity 56 2.22 Change of Lending Office 56 2.23 Substitution of Lenders 56 2.24 Defaulting Lenders. 57 2.25 Notes 60 2.26 Incremental Facility. 60 SECTION 3 LETTERS OF CREDIT 62 3.1 L/C Commitment. 62 3.2 Procedure for Issuance of Letters of Credit 63 3.3 Fees and Other Charges. 63 3.4 L/C Participations; Existing Letters of Credit. 64 3.5 Reimbursement. 65 3.6 Obligations Absolute 65 3.7 Letter of Credit Payments 66 3.8 Applications 66 3.9 Interim Interest 66 3.10 Cash Collateral. 66 3.11 Additional Issuing Lenders 67 3.12 Resignation of the Issuing Lender 67


 
Table of Contents (continued) Page -ii- ny-2857439.1-2857439.11 3.13 Applicability of ISP 68 SECTION 4 REPRESENTATIONS AND WARRANTIES 68 4.1 Financial Condition. 68 4.2 No Change 68 4.3 Existence; Compliance with Law 69 4.4 Power, Authorization; Enforceable Obligations 69 4.5 No Legal Bar 69 4.6 Litigation 69 4.7 No Default 69 4.8 Ownership of Property; Liens; Investments 70 4.9 Intellectual Property 70 4.10 Taxes 70 4.11 Federal Regulations 70 4.12 Labor Matters 70 4.13 ERISA 71 4.14 Investment Company Act; Other Regulations 72 4.15 Subsidiaries 72 4.16 Use of Proceeds 72 4.17 Environmental Matters 72 4.18 Accuracy of Information, etc. 73 4.19 Security Documents. 73 4.20 Solvency 74 4.21 [Reserved] 74 4.22 Designated Senior Indebtedness 74 4.23 [Reserved] 74 4.24 Insurance 74 4.25 No Casualty 74 4.26 Contracts. 74 4.27 Capitalization 74 4.28 OFAC 74 4.29 Anti-Corruption Laws 75 SECTION 5 CONDITIONS PRECEDENT 75 5.1 Conditions to Initial Extension of Credit 75 5.2 Conditions to Each Extension of Credit 78 5.3 Post-Closing Conditions Subsequent 79 SECTION 6 AFFIRMATIVE COVENANTS 79 6.1 Financial Statements 79 6.2 Certificates; Reports; Other Information 80 6.3 Contracts. 81 6.4 Payment of Obligations 82 6.5 Maintenance of Existence; Compliance 82 6.6 Maintenance of Property; Insurance 83 6.7 Inspection of Property; Books and Records; Discussions 83 6.8 Notices 83 6.9 Environmental Laws. 84


 
Table of Contents (continued) Page -iii- ny-2857439.1-2857439.11 6.10 Operating Accounts 84 6.11 Audits 84 6.12 Additional Collateral, Etc. 85 6.13 [Reserved] 87 6.14 Use of Proceeds 87 6.15 Designated Senior Indebtedness 87 6.16 Anti-Corruption Laws 87 6.17 Further Assurances 87 SECTION 7 NEGATIVE COVENANTS 87 7.1 Financial Condition Covenants. 87 7.2 Indebtedness 87 7.3 Liens 89 7.4 Fundamental Changes 90 7.5 Disposition of Property 91 7.6 Restricted Payments 92 7.7 Consolidated Capital Expenditures 93 7.8 Investments 93 7.9 ERISA 95 7.10 Optional Payments and Modifications of Certain Preferred Stock and Debt Instruments 95 7.11 Transactions with Affiliates 96 7.12 Sale Leaseback Transactions 96 7.13 Swap Agreements 96 7.14 Accounting Changes 96 7.15 Negative Pledge Clauses 96 7.16 Clauses Restricting Subsidiary Distributions 96 7.17 Lines of Business 97 7.18 Designation of other Indebtedness 97 7.19 [Reserved] 97 7.20 Amendments to Organizational Agreements and Material Contracts 97 7.21 Use of Proceeds 97 7.22 Subordinated Debt. 97 7.23 Anti-Terrorism Laws. 97 SECTION 8 EVENTS OF DEFAULT 98 8.1 Events of Default 98 8.2 Remedies Upon Event of Default 100 8.3 Application of Funds 101 SECTION 9 THE ADMINISTRATIVE AGENT 103 9.1 Appointment and Authority. 103 9.2 Delegation of Duties 103 9.3 Exculpatory Provisions 104 9.4 Reliance by Administrative Agent 104 9.5 Notice of Default 105 9.6 Non-Reliance on Administrative Agent and Other Lenders 105 9.7 Indemnification 106


 
Table of Contents (continued) Page -iv- ny-2857439.1-2857439.11 9.8 Agent in Its Individual Capacity 106 9.9 Successor Administrative Agent. 106 9.10 Collateral and Guaranty Matters 107 9.11 Administrative Agent May File Proofs of Claim 108 9.12 No Other Duties, etc. 109 9.13 Cash Management Bank and Qualified Counterparty Reports 109 9.14 Erroneous Payments 109 9.15 Survival 112 SECTION 10 MISCELLANEOUS 112 10.1 Amendments and Waivers. 112 10.2 Notices 114 10.3 No Waiver; Cumulative Remedies 116 10.4 Survival of Representations and Warranties 116 10.5 Expenses; Indemnity; Damage Waiver. 116 10.6 Successors and Assigns; Participations and Assignments. 118 10.7 Adjustments; Set-off. 122 10.8 Payments Set Aside 123 10.9 Interest Rate Limitation 123 10.10 Counterparts; Electronic Execution of Assignments. 123 10.11 Severability 123 10.12 Integration 124 10.13 GOVERNING LAW 124 10.14 Submission to Jurisdiction; Waivers 124 10.15 Acknowledgements 125 10.16 Releases of Guarantees and Liens. 125 10.17 Treatment of Certain Information; Confidentiality 126 10.18 Automatic Debits 127 10.19 Judgment Currency 127 10.20 Patriot Act; Other Regulations 127 10.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 128 10.22 Acknowledgement Regarding Any Supported QFCs 128 10.23 Amendment and Restatement of Existing Credit Agreement; Acknowledgment of Prior Obligations; No Novation 129


 
Table of Contents (continued) -i- ny-2857439.1-2857439.11 SCHEDULES Schedule 1.1A: Commitments Schedule 1.1B: Existing Letters of Credit Schedule 4.4: Governmental Approvals, Consents, Authorizations, Filings and Notices Schedule 4.5: Requirements of Law Schedule 4.15: Subsidiaries Schedule 4.17: Environmental Matters Schedule 4.19(a): Financing Statements and Other Filings Schedule 7.2(d): Existing Indebtedness Schedule 7.3(f): Existing Liens EXHIBITS Exhibit A: Form of Amended and Restated Guarantee and Collateral Agreement Exhibit B: Form of Compliance Certificate Exhibit C: Form of Secretary’s/Managing Member’s Certificate Exhibit D: Form of Solvency Certificate Exhibit E: Form of Assignment and Assumption Exhibits F-1 – F-4: Forms of U.S. Tax Compliance Certificate Exhibit G: Reserved Exhibit H-1: Form of Revolving Loan Note Exhibit H-2: Form of Swingline Loan Note Exhibit H-3: Form of Term Loan Note Exhibit I: Form of Borrowing Base Certificate Exhibit J: Form of Collateral Information Certificate Exhibit K: Form of Notice of Borrowing Exhibit L: Form of Notice of Conversion/Continuation


 
AMENDED AND RESTATED CREDIT AGREEMENT THIS AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of April 29, 2022, is entered into by and among ALKAMI TECHNOLOGY, INC., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time party to this Agreement (each a “Lender” and, collectively, the “Lenders”), SILICON VALLEY BANK, A DIVISION OF FIRST-CITIZENS BANK & TRUST COMPANY (“SVB”), as the Issuing Lender, the Swingline Lender, and a joint lead arranger, SVB, as administrative agent and collateral agent for the Lenders (in such capacities, together with any successors and assigns in such capacities, the “Administrative Agent”), COMERICA BANK, as a joint lead arranger, and CANADIAN IMPERIAL BANK OF COMMERCE, as the documentation agent. RECITALS: WHEREAS, the Borrower is a party to that certain Credit Agreement, originally dated as of October 16, 2020, as amended by that certain Consent and First Amendment to Credit Agreement, dated as of May 19, 2021 and that certain Second Amendment to Credit Agreement, dated as of July 1, 2024 (as the same may be further amended, restated or otherwise modified prior to date hereof, the “Existing Credit Agreement”), among the Borrower, the lenders party thereto, and the Administrative Agent, pursuant to which the lenders, the issuing lenders party thereto and the swingline lender party thereto have made available to the Borrower certain extensions of credit; WHEREAS, the Borrower, the Lenders, the Administrative Agent and the other parties hereto have agreed to enter into this Agreement in order to (a) amend and restate the Existing Credit Agreement in its entirety and (b) set forth the terms and conditions under which the Lenders will from time to time make loans and extend other financial accommodations to the Borrower, as set forth below; WHEREAS, the Lenders have agreed to extend certain credit facilities to the Borrower, upon the terms and conditions specified in this Agreement, in an aggregate principal amount not to exceed $210,000,000310,000,000, consisting of a term loan facility in the aggregate principal amount of $85,000,000, which was used to refinance the term loans under the Existing Credit Agreement and has been repaid in full as of the Second Amendment Effective Date, and a revolving loan facility in an aggregate principal amount of up to $125,000,000225,000,000 including a letter of credit sub-facility in the aggregate availability amount of $10,000,000 (as a sublimit of the revolving loan facility); and a swingline sub-facility in the aggregate availability amount of $7,500,000 (as a sublimit of the revolving loan facility); WHEREAS, the Borrower desires to obtain financing for (i) the refinancing of the existing Term Loans under the Existing Credit Agreement, (ii) Permitted Acquisitions, and (iii) working capital financing and letter of credit facilities; WHEREAS, the Borrower has agreed to secure all of its Obligations by granting to the Administrative Agent, for the benefit of the Secured Parties, a first priority lien (subject to Liens permitted by the Loan Documents) on substantially all of its assets; and WHEREAS, each of the Guarantors has agreed to guarantee the Obligations of the Borrower and to secure its respective Obligations in respect of such guarantee by granting to the Administrative Agent, for the benefit of the Secured Parties, a first priority lien (subject to Liens permitted by the Loan Documents) on substantially all of its assets. NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this


 
Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree that the Existing Credit Agreement shall be amended and restated in its entirety to read as follows (it being agreed that this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of the Obligations under, and as defined in, the Existing Credit Agreement): SECTION 1 DEFINITIONS 1.1 Defined Terms. As used in this Agreement (including the recitals hereof), the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1. “ABR”: for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50%, and (c) the Adjusted Term SOFR for a one-month tenor in effect on such day (taking into account the Floor set forth in the definition of “Adjusted Term SOFR”) plus 1.00%; provided that in no event shall the ABR be deemed to be less than 1.00%. Any change in the ABR due to a change in any of the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR, as the case may be, shall be effective as of the opening of business on the effective day of the change in such rates. “ABR Loans”: Loans, the rate of interest applicable to which is based upon the ABR. “ABR Term SOFR Determination Day”: as defined in the definition of “Term SOFR”. “Account Debtor”: any Person who may become obligated to any Person under, with respect to, or on account of, an Account, chattel paper or general intangibles (including a payment intangible). Unless otherwise stated, the term “Account Debtor,” when used herein, shall mean an Account Debtor in respect of an Account of any of the Loan Parties, as applicable. “Accounts”: all “accounts” (as defined in the UCC) of a Person, including, without limitation, accounts, accounts receivable, monies due or to become due and obligations in any form (whether arising in connection with contracts, contract rights, instruments, general intangibles, or chattel paper), in each case whether arising out of goods sold or services rendered or from any other transaction and whether or not earned by performance, now or hereafter in existence, and all documents of title or other documents representing any of the foregoing, and all collateral security and guaranties of any kind, now or hereafter in existence, given by any Person with respect to any of the foregoing. Unless otherwise stated, the term “Account,” when used herein, shall mean an Account of any of the Loan Parties, as applicable. “ACH Subsidiary”: Alkami ACH Alert, Inc., a Delaware corporation and wholly owned subsidiary of Borrower. “Adjusted Term SOFR”: means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that 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. “Administrative Agent”: SVB, as the administrative agent under this Agreement and the other Loan Documents, together with any of its successors in such capacity. “Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial


 
< 0.50:1.00 Institution. “Affected Lender”: as defined in Section 2.23. “Affiliate”: with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that, neither the Administrative Agent nor the Lenders shall be deemed Affiliates of the Loan Parties as a result of the exercise of their rights and remedies under the Loan Documents. “Agent Parties”: as defined in Section 10.2(c)(ii). “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to the sum of (a) without duplication of clause (b), the aggregate then unpaid principal amount of such Lender’s Term Loans, (b) without duplication of clause (a), the aggregate amount of such Lender’s Term Commitments then in effect, (c) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding, and (d) without duplication of clause (b), the L/C Commitment of such Lender then in effect (as a sublimit of the Revolving Commitment of such Lender). “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time. “Agreement”: as defined in the preamble hereto. “Agreement Currency”: as defined in Section 10.19. “Annualized Recurring Revenue”: as of any date, is the product of (a) Recurring Revenue for the most recently ended monthly period as of such date, multiplied by (b) twelve. “Applicable Margin”: initially, the rates per annum corresponding to Level I in the table below; provided that commencing on the date on which the Administrative Agent receives copies of the consolidated financial statements in respect of the fiscal quarter ending June 30, 2022, together with a Compliance Certificate in respect thereof as contemplated by Section 6.2(b), “Applicable Margin” shall mean (a) at any time prior to the Financial Covenant Trigger Date, the rate per annum set forth under the relevant column heading in the first grid below and (b) at any time on or after the Financial Covenant Trigger Date, the rate per annum set forth under the relevant column heading in the second grid below: Prior to the Financial Covenant Trigger Date 3.002.75% SOFR Loans 2.001.75% 0.25% ABR Loans II Commitment Fee Rate > 0.50:1.00 Level 3.503.25% 2.502.25% 0.35% I On or After the Financial Covenant Trigger Date Recurring Revenue Leverage Ratio


 
<2.00:1.00 and > 1.00:1.00 Level 2.001.50% 1.000.50% 0.30% I Consolidated Total Net Leverage Ratio III < 1.00:1.00 <3.00:1.00 and > 2.00:1.00 2.502.00% 1.501.25% 1.501.00% SOFR Loans 0.30% 0.500.25% IV 0.25% >3.00:1.00 ABR Loans 3.002.50% 2.001.50% 0.35% II Notwithstanding the foregoing, (a) if the financial statements required by Section 6.1 and the related Compliance Certificate required by Section 6.2(b) are not delivered by the respective date required thereunder after the end of any related fiscal quarter, the Applicable Margin shall be the rates corresponding to Level II in the first grid at any time prior to the Financial Covenant Trigger Date or Level IV in the second grid at any time on or after the Financial Covenant Trigger Date, as applicable, until such financial statements and Compliance Certificate are delivered, and (b) no reduction to the Applicable Margin shall become effective at any time when an Event of Default has occurred and is continuing. If, as a result of any restatement of or other adjustment to the financial statements of the Loan Parties or for any other reason, the Administrative Agent determines that (x) the Recurring Revenue Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, as calculated by the Borrower as of any applicable date was inaccurate and (y) a proper calculation of the Recurring Revenue Leverage Ratio or Consolidated Total Net Leverage Ratio, as applicable, would have resulted in different pricing for any period, then (i) if the proper calculation of the Recurring Revenue Leverage Ratio or Consolidated Total Net Leverage Ratio, as applicable, would have resulted in higher pricing for such period, the Borrower shall automatically and retroactively be obligated to pay to the Administrative Agent, for the benefit of the applicable Lenders, promptly on demand by the Administrative Agent, an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period; and (ii) if the proper calculation of the Recurring Revenue Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable would have resulted in lower pricing for such period, the excess of the amount of interest and fees actually paid for such period shall be credited to the immediately succeeding interest payment required to be made hereunder. “Application”: an application, in such form as the Issuing Lender may specify from time to time, requesting the Issuing Lender to issue a Letter of Credit. “Approved Fund”: any Fund 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. “Asset Sale”: any Disposition of property or series of related Dispositions of property (excluding any such Disposition of property permitted by Section 7.5) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $500,000. “Assignment and Assumption”: an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.6), and Commitment Fee Rate


 
accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent. “Available Revolving Commitment”: at any time, an amount equal to (a) the lesser of (i) the Total Revolving Commitments in effect at such time and (ii) the Borrowing Base in effect at such time, minus (b) the aggregate undrawn amount of all outstanding Letters of Credit at such time, minus (c) the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time, minus (d) the aggregate principal balance of any Revolving Loans outstanding at such time; provided that in no event shall the Available Revolving Commitment exceed the Available Total Commitment. “Available Revolving Increase Amount”: as of any date of determination, an amount equal to the result of (a) $100,000,000 minus (b) the aggregate principal amount of Increases to the Revolving Commitments previously made pursuant to Section 2.26 after the SecondThird Amendment Effective Date. “Available Tenor”: as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) 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 (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, 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 2.17(b)(iv). “Available Total Commitment”: at any time, an amount equal to (a) the Borrowing Base in effect at such time, minus (b) the aggregate undrawn amount of all outstanding Letters of Credit at such time, minus (c) the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time, minus (d) the aggregate principal balance of any Revolving Loans outstanding at such time minus (e) the aggregate principal balance of any Term Loans outstanding at such time. “Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation”: with (a) respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “Bankruptcy Code”: Title 11 of the United States Code entitled “Bankruptcy.” “Benchmark”: 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” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.17(b)(i).


 
“Benchmark Replacement”: with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date: (a) the sum of (i) Daily Simple SOFR and (ii) the related Benchmark Replacement Adjustment; or (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (ii) the related Benchmark Replacement Adjustment. If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. “Benchmark Replacement Adjustment”: with respect to any replacement of the then current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time. “Benchmark Replacement Date”: the earliest to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any 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”: the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are 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 Unavailability Period”: the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with the Section 2.17(b) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.17(b). “Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230. “Benefitted Lender”: as defined in Section 10.7(a). “Blocked Person”: as defined in Section 7.23. “Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor). “Borrower”: as defined in the preamble hereto.


 
“Borrowing”: a borrowing consisting of simultaneous Loans of the same Type and, in the case of a SOFR Borrowing, having the same Interest Period made by the Lenders. “Borrowing Base”: as of any date, the product of (a) Annualized Recurring Revenue as of such date, multiplied by (b) the Retention Rate, as may be adjusted from time to time by the Administrative Agent, with the consent of all Lenders, in its good faith reasonable business discretion upon consultation with Borrower. “Borrowing Base Certificate”: a certificate, including transaction reports, to be executed and delivered from time to time by the Borrower in substantially the form of Exhibit I, or in such other form as shall be acceptable in form and substance to the Administrative Agent. “Borrowing Date”: any Business Day specified by the Borrower in a Notice of Borrowing as a date on which the Borrower requests the relevant Lenders to make Loans hereunder. “Business”: as defined in Section 4.17(b). “Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in the State of New York are authorized or required by law to close. “Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP. “Capital Stock”: with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.; provided that, neither Permitted Convertible Indebtedness nor any Permitted Equity Derivative Transaction shall constitute Capital Stock; it being agreed that any Capital Stock into which Permitted Convertible Indebtedness is convertible into, or exchangeable or redeemable for, shall constitute Capital Stock solely following settlement of any conversion or exchange with such Capital Stock. “Cash Collateralize”: to pledge and deposit with or deliver to (a) with respect to Obligations in respect of Letters of Credit, the Administrative Agent, for the benefit of the Issuing Lender and one or more of the Lenders, as applicable, as collateral for L/C Exposure or obligations of the Lenders to fund participations in respect thereof, cash or deposit account balances or, if the Administrative Agent and the Issuing Lender shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and such Issuing Lender; (b) with respect to Obligations arising under any Cash Management Agreement in connection with Cash Management Services, the applicable Cash Management Bank, for its own or any of its applicable Affiliate’s benefit, as provider of such Cash Management Services, cash or deposit account balances or, if the Administrative Agent and the applicable Cash Management Bank shall agree in their sole


 
discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and such Cash Management Bank; or (c) with respect to Obligations in respect of any Specified Swap Agreements, the applicable Qualified Counterparty, as Collateral for such Obligations, cash or deposit account balances or, if such Qualified Counterparty shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to such Qualified Counterparty. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support. “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $250,000,000; (c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; or (h) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000. “Cash Management Agreement”: as defined in the definition of “Cash Management Services.” “Cash Management Bank”: any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement. “Cash Management Services”: cash management and other services provided to one or more of the Loan Parties or Subsidiaries of the Loan Parties by a Cash Management Bank which may include treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system), merchant services, direct deposit of payroll, business credit card (including so-called "purchase cards", "procurement cards" or "p-cards"), credit card processing services, debit cards, stored value cards, and check cashing services identified in such Cash Management Bank’s various cash management services or other similar agreements (each, a “Cash Management Agreement”). “Casualty Event”: any damage to or any destruction of, or any condemnation or other taking by


 
any Governmental Authority of any property of the Loan Parties. “Certificated Securities”: as defined in Section 4.19(a). “Change of Control”: (a) at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 40% or more of the ordinary voting power for the election of directors of the Borrower (determined on a fully diluted basis); (b) during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (disregarding individuals who cease to serve due to death or disability) (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body (whether by that board or equivalent governing body, by the stockholders or any other person) was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or (c) at any time, the Borrower shall cease to own and control, of record and beneficially, directly or indirectly, 100% of each class of outstanding Capital Stock of each Guarantor free and clear of all Liens; or (d) a “change of control” or any comparable term under and as defined in any agreement governing Permitted Convertible Indebtedness or any other Indebtedness of the Group Members. “Churn Rate”: is (i) the quotient of (A) the gross Recurring Revenue lost (including customer attrition and reduced usage by a customer) plus (i.e., as an offset against such lost Recurring Revenue) increased usage and upsells from existing written contracts during the last month of the calendar quarter period divided by (B) Recurring Revenue for the last month of the immediately preceding calendar quarter, multiplied by (ii) twelve, expressed as a percentage; Churn Rate shall be calculated by the Administrative Agent based on information provided by Borrower and acceptable to the Administrative Agent, in its reasonable determination, quarterly, on the last day of such quarter. For the avoidance of doubt, (i) if such increased usage and upsells exceed gross Recurring Revenue lost, the Churn Rate shall be calculated as zero, and (ii) Recurring Revenue derived from new customers that were not customers as of the start of the calendar quarter will be excluded from the calculation of Churn Rate for the calendar quarter. “Closing Date”: the date on which all of the conditions precedent set forth in Section 5.1 are satisfied or waived by the Administrative Agent and, as applicable, the Lenders or the Required Lenders. “Code”: the Internal Revenue Code of 1986, as amended from time to time. “Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document. “Collateral Information Certificate”: the Collateral Information Certificate to be executed and delivered by the Borrower pursuant to Section 5.1, substantially in the form of Exhibit J. “Collateral-Related Expenses”: all costs and expenses of the Administrative Agent paid or incurred in connection with any sale, collection or other realization on the Collateral, including reasonable compensation to the Administrative Agent and its agents and counsel, and reimbursement for all other costs, expenses and liabilities and advances made or incurred by the Administrative Agent in


 
connection therewith (including as described in Section 6.6 of the Guarantee and Collateral Agreement), and all amounts for which the Administrative Agent is entitled to indemnification under the Security Documents and all advances made by the Administrative Agent under the Security Documents for the account of any Loan Party. “Commitment”: as to any Lender, the sum of its Term Commitment and its Revolving Commitment. “Commitment Fee Rate”: the rate per annum set forth under the relevant column heading in the table for the definition “Applicable Margin”. “Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. Section 1 et seq.), as amended from time to time, and any successor statute. “Communications”: as defined in Section 10.2(d)(ii). “Compliance Certificate”: a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B. “Conforming Changes”: with respect to either the use or administration of any Benchmark 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 2.14 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). “Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Consolidated Capital Expenditures”: for any period, with respect to the Group Members, the aggregate of all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Lease Obligations which is capitalized on the consolidated balance sheet of the Group Members) by such Group Members during such period for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that, in conformity with GAAP, are included in “additions to property, plant or equipment” or comparable items reflected in the consolidated statement of cash flows of the Group Members. “Consolidated EBITDA”: with respect to the Group Members for any period, (a) Consolidated Net Income, plus


 
(b) the sum of, without duplication, of the following amounts for such period but solely to the extent deducted in calculating Consolidated Net Income for such period: (i) Consolidated Interest Expense; plus (ii) provisions for Taxes based on income; plus (iii) total depreciation expense; plus (iv) total amortization expense (including, without limitation, amortization of intangibles from purchase price accounting, amortization of capitalized development cost, amortization of deferred implementation cost and amortization of deferred sales commission expense); plus (v) noncash stock based compensation expense; plus (vi) noncash exchange, transaction or performance losses relating to any foreign currency hedging transactions or currency fluctuations; plus (vii) costs, fees and expenses in connection with the execution and delivery of this Agreement and the other Loan Documents and any amendments or other modifications thereto, in each case to the extent incurred within 6 months after the Closing Date or the effectiveness of such amendment or other modification (or such later time period as approved in writing by the Administrative Agent in its sole discretion); plus (viii) one-time costs, fees, and expenses in connection with Permitted Acquisitions, Investments, dispositions, or issuances or repurchases of Capital Stock, in each case, whether or not consummated; provided that, any amounts described in this clause (b)(viii) with respect to transactions that are not consummated shall not exceed $2,000,000 in the aggregate for any period; plus (ix) noncash purchase accounting adjustments (including, but not limited to deferred revenue write down) and any adjustments as required or permitted by the application of FASB 141 (requiring the use of purchase method of accounting for acquisitions and consolidations), FASB 142 (relating to changes in accounting for the amortization of goodwill and certain other intangibles) and FASB 144 (relating to the write downs of long-lived assets), in each case, in connection with Permitted Acquisitions; plus (x) any earn-out or similar contingent consideration payments actually made to sellers in connection with any Acquisition or similar investment, and any losses arising from the remeasurement of the fair value of any liability recorded with respect to any earn-out or similar contingent consideration arising from any Acquisition or similar investment; plus (xi) noncash charges for goodwill and other intangible write-offs and write-downs in connection with Permitted Acquisitions or otherwise; plus (xii) any extraordinary, unusual or non-recurring non-cash expenses or non-cash charges; plus (xiii) other noncash items reducing Consolidated Net Income (excluding any such non cash item to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid in a prior period) approved by the Administrative Agent in writing as an ‘add-back’ to Consolidated EBITDA; provided that the


 
aggregate amount added back pursuant to this clause (b)(xiii) shall not exceed, for any period of four consecutive fiscal quarters, 25% of Consolidated EBITDA (calculated prior to giving effect to such addback); plus (xiv) any Insurance Loss Addback; plus (xv) any expense deducted in calculating Consolidated Net Income and reimbursed (during the applicable reporting period) by third parties (other than a Group Member); minus (c) the sum of, without duplication, the following amounts for such period but solely to the extent increasing Consolidated Net Income for such period (other than in the case of clause (ii)): (i) interest income; plus (ii) capitalized software development costs, deferred sales commission expense and deferred implementation costs; plus (iii) noncash items increasing Consolidated Net Income for such period (excluding any such noncash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period); plus (iv) any extraordinary, unusual or non-recurring gains, plus (d) any net positive change (or minus any net negative change) in the deferred revenue for any period, as measured against the same period for the prior fiscal year; provided that Consolidated EBITDA for any period shall be determined on a Pro Forma Basis to give effect to any Permitted Acquisitions or any Disposition of any business or assets consummated during such period, in each case as if such transaction occurred on the first day of such period and in accordance with Regulation S-X promulgated by the SEC. “Consolidated Interest Coverage Ratio”: as at the last day of any period, the ratio of (a) Consolidated EBITDA for the trailing twelve month period ending on such day to (b) Consolidated Interest Expense for the trailing twelve month period ending on such day. “Consolidated Interest Expense”: for any period, total interest expense (including that attributable to Capital Lease Obligations) of Borrower and its consolidated Subsidiaries for such period with respect to all outstanding Indebtedness of Borrower and its consolidated Subsidiaries (including the commitment fee set forth in Section 2.9(b)), all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP. “Consolidated Net Income”: for any period, the consolidated net income (or loss) of the Group Members, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from the calculation of “Consolidated Net Income” (a) the income (or deficit) of any such Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with a Group Member, (b) the income (or deficit) of any such Person (other than a Subsidiary of the Borrower) in which a Group Member has an ownership interest, except to the extent that any such income is earned income and is actually received by a Group Member in the form of dividends or similar distributions, and (c) the undistributed earnings of any Subsidiary of the Borrower to


 
the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or applicable law applicable to such Subsidiary. “Consolidated Senior Indebtedness”: as of any date of determination, the sum of the aggregate principal amounts outstanding under the Revolving Facility, any Term Loans, Capital Lease Obligations, unfunded holdback amounts or deferred purchase price amounts (other than deferred purchase price amounts to be settled solely in Capital Stock), in each case, determined on a consolidated basis in accordance with GAAP. “Consolidated Senior Net Leverage Ratio”: as at the last day of any period, the ratio of (a) Consolidated Senior Indebtedness on such day minus unrestricted cash held at such time by the Loan Parties in Deposit Accounts or Securities Accounts subject to a first priority perfected Lien in favor of the Administrative Agent in an amount not to exceed 50% of Consolidated EBITDA for the trailing twelve month period ending on such date, to (b) Consolidated EBITDA for the trailing twelve month period ending on such date. “Consolidated Total Indebtedness”: at any date, the aggregate principal amount of all Indebtedness of the Group Members at such date, determined on a consolidated basis in accordance with GAAP, but excluding any liabilities referred to in clauses (f) and (h) of the definition of “Indebtedness.” “Consolidated Total Net Leverage Ratio”: as at the last day of any period, the ratio of (a) Consolidated Total Indebtedness on such day minus unrestricted cash held at such time by the Loan Parties in Deposit Accounts or Securities Accounts subject to a first priority perfected Lien in favor of the Administrative Agent in an amount not to exceed 50% of Consolidated EBITDA for the trailing twelve month period ending on such date to (b) Consolidated EBITDA for the trailing twelve month period ending on such day. “Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. “Control”: the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Control Agreement”: any account control agreement in form and substance reasonably satisfactory to the Administrative Agent entered into among the depository institution at which a Loan Party maintains a Deposit Account or the securities intermediary at which a Loan Party maintains a Securities Account, such Loan Party, and the Administrative Agent pursuant to which the Administrative Agent obtains control (within the meaning of the UCC or any other applicable law) over such Deposit Account or Securities Account. “Daily Simple SOFR”: for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for the day (such day a “SOFR Determination Day”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website, and (b) the Floor. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Day, SOFR in respect of such SOFR


 
Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower. “Debtor Relief Laws”: the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. “Declined Amount”: as defined in Section 2.12(e). “Default”: any of the events specified in Section 8.1, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied. “Default Rate”: as defined in Section 2.15(c). “Defaulting Lender”: subject to Section 2.24(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the Issuing Lender or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) become the subject of a Bail-In Action or (iii) 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; 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 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 2.24(b)) upon delivery of written notice of such determination to the Borrower, the Issuing Lender, the Swingline Lender and each Lender. “Deposit Account”: any “deposit account” as defined in the UCC with such additions to such term as may hereafter be made. “Deposit Account Control Agreement”: any Control Agreement entered into by the Administrative Agent, a Loan Party and a financial institution holding a Deposit Account of such Loan Party pursuant to which the Administrative Agent is granted “control” (for purposes of the UCC) over such Deposit Account. “Designated Jurisdiction”: any country or territory to the extent that such country or territory itself is the subject of any Sanction. “Discharge of Obligations”: subject to Section 10.8, the satisfaction of the Obligations (including all such Obligations relating to Cash Management Services) by the payment in full, in cash (or, as applicable, Cash Collateralization in accordance with the terms hereof) of the principal of and interest on or other liabilities relating to each Loan and any previously provided Cash Management Services, all fees and all other expenses or amounts payable under any Loan Document (other than inchoate indemnification obligations and any other obligations which pursuant to the terms of any Loan Document specifically survive repayment of the Loans for which no claim has been made), and other Obligations under or in respect of Specified Swap Agreements and Cash Management Services, to the extent (a) no default or termination event shall have occurred and be continuing thereunder, (b) any such Obligations in respect of Specified Swap Agreements have, if required by any applicable Qualified Counterparties, been Cash Collateralized, (c) no Letter of Credit shall be outstanding (or, as applicable, each outstanding and undrawn Letter of Credit has been Cash Collateralized in accordance with the terms hereof), (d) no Obligations in respect of any Cash Management Services are outstanding (or, as applicable, all such outstanding Obligations in respect of Cash Management Services have been Cash Collateralized in accordance with the terms hereof), and (e) the aggregate Commitments of the Lenders are terminated. “Disposition”: with respect to any property (including, without limitation, Capital Stock of any Group Member), any sale, lease, Sale Leaseback Transaction, assignment, conveyance, transfer, encumbrance or other disposition thereof (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) and any issuance of Capital Stock of any Group Member. The terms “Dispose” and “Disposed of” shall have correlative meanings. For the avoidance of doubt, none of (a) the sale or issuance of any Permitted Convertible Indebtedness by the Borrower, (b) the purchase, sale, or entry into any Permitted Equity Derivative Transaction by the Borrower in connection with the issuance of any Permitted Convertible Indebtedness or any amendment, restatement, supplement or other modification from time to time contemplated by the definition thereof, (c) the settlement, unwinding or termination of any Permitted Equity Derivative Transaction, or (d) the issuance of cash or Capital Stock pursuant to the conversion, exchange or redemption of Permitted Convertible Indebtedness shall constitute a Disposition. “Disqualified Stock”: any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is ninety-one (91) days after the date on which the Loans mature. The amount of


 
Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Group Members may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends. “Division”: in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including as contemplated under Section 18-217 of the Delaware Limited Liability Company Act, or any analogous action taken pursuant to any other applicable Requirements of Law. “Dollars” and “$”: dollars in lawful currency of the United States. “Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States. “EEA Financial Institution”: (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”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority”: any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Eligible Assignee”: any Person that meets the requirements to be an assignee under Section 10.6(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.6(b)(iii)). “Environmental Laws”: any and all foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time hereafter be in effect. “Environmental Liability”: any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Group Member directly or indirectly resulting from or based upon (a) a violation of an Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Materials of Environmental Concern, (c) exposure to any Materials of Environmental Concern, (d) the release or threatened release of any Materials of Environmental Concern into the environment, or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “ERISA”: the Employee Retirement Income Security Act of 1974, as amended, including (unless the context otherwise requires) any rules or regulations promulgated thereunder.


 
“ERISA Affiliate”: each business or entity which is, or within the last six years was, a member of a “controlled group of corporations,” under “common control” or an “affiliated service group” with any Loan Party within the meaning of Section 414(b), (c), (m) or (n) of the Code, required to be aggregated with any Loan Party under Section 414(o) of the Code, or is, or within the last six years was, under “common control” with any Loan Party, within the meaning of Section 4001(a)(14) of ERISA. “ERISA Event”: any of (a) a reportable event as defined in Section 4043 of ERISA with respect to a Pension Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event; (b) the applicability of the requirements of Section 4043(b) of ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, to any Pension Plan where an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such plan within the following 30 days; (c) a withdrawal by any Loan Party or any ERISA Affiliate thereof from a Pension Plan or the termination of any Pension Plan resulting in liability under Sections 4063 or 4064 of ERISA; (d) the withdrawal of any Loan Party or any ERISA Affiliate thereof in a complete or partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any Loan Party or any ERISA Affiliate thereof of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA; (e) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) the imposition of liability on any Loan Party or any ERISA Affiliate thereof pursuant to Sections 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the failure by any Loan Party or any ERISA Affiliate thereof to make any required contribution to a Pension Plan, or the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430 of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (h) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered to critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (i) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (j) the imposition of any liability under Title I or Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate thereof; (k) an application for a funding waiver under Section 303 of ERISA or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Pension Plan; (l) the occurrence of a non-exempt prohibited transaction under Sections 406 or 407 of ERISA for which any Group Member may be directly or indirectly liable; (m) a violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person for which any Loan Party or any ERISA Affiliate thereof may be directly or indirectly liable; (n) the occurrence of an act or omission which could give rise to the imposition on any Loan Party or any ERISA Affiliate thereof of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Sections 409, 502(c), (i) or (1) or 4071 of ERISA; (o) the assertion of a material claim (other than routine claims for benefits) against any Plan or the assets thereof, or against any Group Member in connection with any such Plan; (p) receipt from the IRS of notice of the failure of any Qualified Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Qualified Plan to qualify for exemption from taxation under Section 501(a) of the Code; (q) the imposition of any lien (or the fulfillment of the conditions for the imposition of any lien) on any of the rights, properties or assets of any Loan Party or any ERISA Affiliate thereof, in either case pursuant to Title I or IV of ERISA, including Section 302(f) or 303(k) of ERISA or to Section 401(a)(29) or 430(k) of the Code; (r) noncompliance with any requirement of Section 409A or 457 of the Code; (s) a violation of the Consolidated Omnibus Budget


 
Reconciliation Act of 1985 (COBRA), the Health Insurance Portability and Accountability Act of 1996 (HIPPA) and the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (ACA); or (t) the establishment or amendment by any Group Member of any “welfare plan” as such term is defined in Section 3(1) of ERISA, that provides post-employment welfare benefits in a manner that would increase the liability of any Loan Party. “ERISA Funding Rules”: the rules regarding minimum required contributions (including any installment payment thereof) to Pension Plans, as set forth in Section 412 of the Code and Section 302 of ERISA, with respect to Plan years ending prior to the effective date of the Pension Protection Act of 2006, and thereafter, as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA. “Erroneous Payment”: as defined in Section 9.14(a). “Erroneous Payment Deficiency Assignment”: as defined in Section 9.14(d). “Erroneous Payment Return Deficiency”: as defined in Section 9.14(d). “Erroneous Payment Subrogation Rights”: as defined in Section 9.14(d). “EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time. “Event of Default”: any of the events specified in Section 8.1; provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied. “Exchange Act”: the Securities Exchange Act of 1934, as amended from time to time and any successor statute. “Existing Credit Agreement”: as defined in the recitals hereto. “Existing Letter of Credit”: the letters of credit described on Schedule 1.1B. “Excluded Foreign Subsidiary”: any Foreign Subsidiary in respect of which either (a) the pledge of all of the Capital Stock of such Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would, in the good faith judgment of the Borrower, result in material adverse tax consequences to the Borrower. “Excluded Swap Obligations”: with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee Obligation of such Guarantor with respect to, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time such Guarantee Obligation of such Guarantor, or the grant by such Guarantor of such Lien, becomes effective with respect to such Swap Obligation. If such 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 Obligation or Lien is or becomes excluded in accordance with the first sentence of this definition. “Excluded Taxes”: any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by


 
net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.23) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.20(f) and (d) any U.S. federal withholding Taxes imposed under FATCA. “Facility”: each of (a) the Term Facility, (b) the L/C Facility (which is a sub-facility of the Revolving Facility), and (c) the Revolving Facility. “FASB ASC”: the Accounting Standards certification of the Financial Accounting Standards Board. “FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. “Federal Funds Effective Rate”: for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by SVB from three federal funds brokers of recognized standing selected by it. “Fee Letter”: the letter agreement dated February 10, 2022, between the Borrower and the Administrative Agent. “Financial Covenant Trigger Date”: the earlier of (a) April 28December 31, 2026 or (b) the date designated by the Borrower as the Financial Covenant Trigger Date in its discretion no later than 10 days prior to the last day of the first fiscal quarter with respect to which the Borrower is electing to comply with the financial covenants in Sections 7.1(c) and, (d) and (e) instead of Sections 7.1(a) and (b). “Flood Laws”: the National Flood Insurance Reform Act of 1994 and related legislation (including the regulations of the Board of Governors of the Federal Reserve System). “Floor”: a rate of interest equal to 0.00%. “Flow of Funds Agreement”: the spreadsheet or other similar statement prepared and certified by Borrowers, regarding the disbursement of Loan proceeds, the funding and the payment of the fees and expenses of the Administrative Agent and the Lenders (including their respective counsel), and such other matters as may be agreed to by Borrowers, the Administrative Agent and the Lenders.


 
“Foreclosed Borrowers”: as defined in Section 2.25. “Foreign Lender”: (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. “Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic Subsidiary. “Free Cash Flow”: with respect to any period, (a) net cash received by the Group Members from operations during such period minus (b) Consolidated Capital Expenditures with respect to such period minus (c) capitalized software development costs with respect to such period. “Fronting Exposure”: at any time there is a Defaulting Lender, as applicable, (a) with respect to the Issuing Lender, such Defaulting Lender’s L/C Percentage of the outstanding L/C Exposure other than 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, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Percentage of outstanding Swingline Loans made by the Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders. “Fund”: any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities. “Funding Office”: the Revolving Loan Funding Office or the Term Loan Funding Office, as the context requires. “GAAP”: generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 4.1(b). In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations to amend such provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC, or the adoption of IFRS. “Governmental Approval”: any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority. “Governmental Authority”: the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any


 
supra-national bodies such as the European Union or the European Central Bank), and any group or body charged with setting accounting or regulatory capital rules or standards (including the Financial Standards Board, the Bank for International Settlements, the Basel Committee on Banking Supervision and any successor or similar authority to any of the foregoing). “Group Members”: the collective reference to the Borrower and its Subsidiaries, including ACH Subsidiary. “Guarantee and Collateral Agreement”: the Amended and Restated Guarantee and Collateral Agreement to be executed and delivered by the Loan Parties, substantially in the form of Exhibit A. “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. “Guarantors”: a collective reference to each Subsidiary of the Borrower which has become a Guarantor pursuant to the requirements of Section 6.12 hereof and the Guarantee and Collateral Agreement. Notwithstanding the foregoing or any contrary provision herein or in any other Loan Document, no Excluded Foreign Subsidiary shall be required to become a Guarantor. “IFRS”: international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein. “Illegality Notice”: as defined in Section 2.19. “Increase”: as defined in Section 2.26. “Increase Joinder”: an instrument, in form and substance reasonably satisfactory to the Administrative Agent, by which a Lender becomes a party to this Agreement pursuant to Section 2.26. “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property


 
or services (other than current trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations and all Synthetic Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Capital Stock in such Person or any other Person (including, without limitation, Disqualified Stock), or any warrant, right or option to acquire such Capital Stock, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) the net obligations of such Person in respect of Swap Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. “Indemnified Taxes”: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. “Indemnitee”: as defined in Section 10.5(b). “Insolvency Proceeding”: (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of any Person’s creditors generally or any substantial portion of such Person’s creditors, in each case undertaken under U.S. federal, state or foreign law, including any Debtor Relief Law. “Insurance Loss Addback”: with respect to any fiscal period, the amount of any loss incurred during such fiscal period for which there is insurance or indemnity coverage and for which a related insurance or indemnity recovery is not recorded in accordance with GAAP, but for which such insurance or indemnity recovery is reasonably expected to be received by a Loan Party in a subsequent fiscal period and within one year of the date of the underlying loss. “Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom. “Intellectual Property Security Agreement”: an intellectual property security agreement entered into between a Loan Party and the Administrative Agent pursuant to the terms of the Guarantee and Collateral Agreement in form and substance satisfactory to the Administrative Agent, together with each


 
other intellectual property security agreement and supplement thereto delivered pursuant to Section 6.12, in each case as amended, restated, supplemented or otherwise modified from time to time. “Interest Payment Date”: (a) as to any ABR Loan (including any Swingline Loan), the first Business Day of each calendar month to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any SOFR Loan, (i) having an Interest Period of three (3) months or less, the last Business Day of such Interest Period and the final maturity date of such Loan and (ii) having an Interest Period longer than three (3) months, each Business Day that is three (3) months after the first day of such Interest Period, the last Business Day of such Interest Period and the final maturity date of such Loan, and (c) as to any Loan, the date of any repayment or prepayment made in respect thereof. “Interest Period”: as to any SOFR Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such SOFR Loan and ending on the numerically corresponding day in the month that is one, three or six months thereafter, as selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such SOFR Loan and ending on the numerically corresponding day in the month that is one, three or six months thereafter, as selected by the Borrower in a Notice of Conversion/Continuation delivered to the Administrative Agent not later than 10:00 A.M. on the date that is three (3) U.S. Government Securities Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following: (i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day; (ii) the Borrower may not select an Interest Period under a particular Facility that would extend beyond the Revolving Termination Date (in the case of Revolving Facility) or beyond the Term Loan Maturity Date (in the case of Term Loans); (iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and (iv) no tenor that has been removed from this definition pursuant to Section 2.17(b) shall be available for specification in any Notice of Borrowing or Notice of Conversion/Continuation. “Interest Rate Agreement”: any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is (a) for the purpose of hedging the interest rate exposure associated with the Group Members’ operations, and (b) not for speculative purposes. “Inventory”: all “inventory,” as such term is defined in the UCC, now owned or hereafter acquired by any Loan Party, wherever located, and in any event including inventory, merchandise, goods and other personal property that are held by or on behalf of any Loan Party for sale or lease or are furnished or are to be furnished under a contract of service, or that constitutes raw materials, work in process, finished goods, returned goods, or materials or supplies of any kind used or consumed or to be used or consumed in such Loan Party’s business or in the processing, production, packaging, promotion,


 
delivery or shipping of the same, including all supplies and embedded software. “Investments”: as defined in Section 7.8. “IRS”: the Internal Revenue Service, or any successor thereto. “ISP”: with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance). “Issuing Lender”: as the context may require, (a) SVB or any Affiliate thereof, in its capacity as issuer of any Letter of Credit, and (b) any other Lender that may become an Issuing Lender pursuant to Section 3.11 or 3.12, with respect to Letters of Credit issued by such Lender. The Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Lender or other financial institutions, in which case the term “Issuing Lender” shall include any such Affiliate or other financial institution with respect to Letters of Credit issued by such Affiliate or other financial institution. “Issuing Lender Fees”: as defined in Section 3.3(a). “Judgment Currency”: as defined in Section 10.19. “L/C Advance”: each L/C Lender’s funding of its participation in any L/C Disbursement in accordance with its L/C Percentage of the L/C Commitment. “L/C Commitment”: as to any L/C Lender, the obligation of such L/C Lender, if any, to purchase an undivided interest in the Issuing Lenders’ obligations and rights under and in respect of each Letter of Credit (including to make payments with respect to draws made under any Letter of Credit pursuant to Section 3.5(b)) in an aggregate principal amount not to exceed the amount set forth under the heading “L/C Commitment” opposite such L/C Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such L/C Lender becomes a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The L/C Commitment is a sublimit of the Revolving Commitment and the aggregate amount of the L/C Commitments shall not exceed the amount of the Total L/C Commitments at any time. “L/C Disbursements”: a payment or disbursement made by the Issuing Lender pursuant to a Letter of Credit. “L/C Exposure”: at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, and (b) the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time. The L/C Exposure of any L/C Lender at any time shall equal its L/C Percentage of the aggregate L/C Exposure at such time. “L/C Facility”: the L/C Commitments and the extensions of credit made thereunder. “L/C Fee Payment Date”: as defined in Section 3.3(a). “L/C Lender”: a Lender with an L/C Commitment. “L/C Percentage”: as to any L/C Lender at any time, the percentage of the Total L/C Commitments represented by such L/C Lender’s L/C Commitment, as such percentage may be adjusted


 
as provided in Section 2.24. “L/C-Related Documents”: collectively, each Letter of Credit, all applications for any Letter of Credit (and applications for the amendment of any Letter of Credit) submitted by the Borrower to the Issuing Lender and any other document, agreement and instrument relating to any Letter of Credit, including any of the Issuing Lender’s standard form documents for letter of credit issuances. “Lenders”: as defined in the preamble hereto; provided that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include the L/C Lenders, the Issuing Lender and the Swingline Lender. “Letter of Credit”: as defined in Section 3.1(a); provided that such term shall include each Existing Letter of Credit. “Letter of Credit Availability Period”: the period from and including the Closing Date to but excluding the Letter of Credit Maturity Date. “Letter of Credit Fees”: as defined in Section 3.3(a). “Letter of Credit Fronting Fees”: as defined in Section 3.3(a). “Letter of Credit Maturity Date”: the date occurring 15 days prior to the Revolving Termination Date then in effect (or, if such day is not a Business Day, the next preceding Business Day). “Lien”: any mortgage, deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing). “Liquidity”: at any time, the sum of (a) the aggregate amount of unrestricted cash and Cash Equivalents held at such time by the Loan Parties in Deposit Accounts or Securities Accounts subject to a first priority perfected Lien in favor of the Administrative Agent, (b) the aggregate amount of unrestricted cash and Cash Equivalents held at such time by the Loan Parties in other Deposit Accounts or Securities Accounts (other than Excluded Accounts (as defined in the Guarantee and Collateral Agreement)) as long as such Deposit Accounts and Securities Accounts become subject to a first priority perfected Lien in favor of the Administrative Agent within 45 days (or such longer period as may be agreed by the Administrative Agent in its reasonable discretion) after the opening of any such accounts in accordance with Section 6.10, and (b) the Available Revolving Commitment at such time. “Loan”: any loan made or maintained by any Lender pursuant to this Agreement. “Loan Documents”: this Agreement, each Security Document, each Note, the Fee Letter, each Assignment and Assumption, each Compliance Certificate, each Borrowing Base Certificate, each Notice of Borrowing, each Notice of Conversion/Continuation, each Cash Management Agreement, the Solvency Certificate, the Collateral Information Certificate, each L/C-Related Document, and any agreement creating or perfecting rights in cash collateral pursuant to the provisions of Section 3.10, or otherwise, and any amendment, waiver, supplement or other modification to any of the foregoing. “Loan Parties”: each Group Member that is a party to a Loan Document, as a Borrower or a Guarantor.


 
“Majority Revolving Lenders”: at any time, (a) if only one Revolving Lender holds the Total Revolving Commitments at such time, such Revolving Lender, both before and after the termination of such Revolving Commitment; and (b) if more than one Revolving Lender holds the Total Revolving Commitment, at least two Revolving Lenders who hold more than 50% of the Total Revolving Commitments (including, without duplication, the L/C Commitments) or, at any time after the termination of the Revolving Commitments when such Revolving Commitments were held by more than one Revolving Lender, at least two Revolving Lenders who hold more than 50% of the Total Revolving Extensions of Credit then outstanding (including, without duplication, any L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time)); provided that the Revolving Commitments of, and the portion of the Revolving Loans and participations in L/C Exposure and Swingline Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Revolving Lenders; provided further that a Lender and its Affiliates shall be deemed one Lender. “Majority Term Lenders”: at any time, (a) if only one Term Lender holds the Term Loan, such Term Lender; and (b) if more than one Term Lender holds the Term Loan, at least two Term Lenders who hold more than 50% of the principal sum of all Term Loans outstanding; provided that the portion of the Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Term Lenders; provided further that a Lender and its Affiliates shall be deemed one Lender. “Mandatory Prepayment Date”: as defined in Section 2.12(e). “MANTL”: Fin Technologies, Inc. dba MANTL, a Delaware corporation. “MANTL Acquisition”: the acquisition by any Loan Party of the Capital Stock of MANTL pursuant to the terms of the MANTL Merger Agreement. “MANTL Merger Agreement”: that certain Agreement and Plan of Merger, dated as of the date hereof, by and among the Borrower, MCW MergerSub, Inc., a Delaware corporation, MANTL and Shareholder Representative Services LLC, a Colorado limited liability company, as Company Representative, providing for the acquisition of MANTL by the Borrower, as may be amended, restated, supplemented or otherwise modified from time to time; provided, that unless consented to by the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), no such amendment, restatement, supplement, or other modification shall be materially adverse to the Administrative Agent or the Lenders (it being understood and agreed that any change in the purchase price of, or consideration for, the MANTL acquisition is not material and adverse to the Administrative Agent or the Lenders). “Material Adverse Effect”: (a) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent), or financial condition of the Group Members, taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of the Borrower or any Loan Party to perform its respective obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower or any Loan Party of any Loan Document to which it is a party. “Materials of Environmental Concern”: any substance, material or waste that is defined, regulated, governed or otherwise characterized under any Environmental Law as hazardous or toxic or as a pollutant or contaminant (or by words of similar meaning and regulatory effect), any petroleum or petroleum products, asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, molds or fungus,


 
and radioactivity, radiofrequency radiation at levels known to be hazardous to human health and safety. “Minority Lender”: as defined in Section 10.1(b). “Moody’s”: Moody’s Investors Service, Inc. “Mortgaged Properties”: the real properties as to which, pursuant to Section 6.12(b) or otherwise, the Administrative Agent, for the benefit of the Secured Parties, shall be granted a Lien pursuant to the Mortgages. “Mortgages”: each of the mortgages, deeds of trust, deeds to secure debt or such equivalent documents hereafter entered into and executed and delivered by one or more of the Loan Parties to the Administrative Agent, in each case, as such documents may be amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time and in form and substance reasonably acceptable to the Administrative Agent. “Multiemployer Plan”: a “multiemployer plan” (within the meaning of Section 3(37) of ERISA) to which any Loan Party or any ERISA Affiliate thereof makes, is making, or is obligated or has ever been obligated to make, contributions. “Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received), net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document), a reasonable reserve for any purchase price adjustment or indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by any Loan Party or any of its Subsidiaries in connection with such Asset Sale and other customary costs, fees and expenses actually incurred in connection therewith and net of taxes paid and the Borrower’s reasonable and good faith estimate of income, franchise, sales, and other applicable taxes required to be paid by the Borrower or any Guarantor in connection with such Asset Sale or Recovery Event in the taxable year that such Asset Sale or Recovery Event is consummated, the computation of which shall, in each such case, take into account the reduction in tax liability resulting from any available operating losses and net operating loss carryovers, tax credits, and tax credit carry forwards, and similar tax attributes and (b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary costs, fees and expenses actually incurred in connection therewith. “Non-Consenting Lender”: any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Affected Lenders in accordance with the terms of Section 10.1 and (b) has been approved by the Required Lenders. “Non-Defaulting Lender”: at any time, each Lender that is not a Defaulting Lender at such time. “Note”: a Term Loan Note, a Revolving Loan Note or a Swingline Loan Note. “Notice of Borrowing”: a notice substantially in the form of Exhibit K.


 
“Notice of Conversion/Continuation”: a notice substantially in the form of Exhibit L. “Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any Insolvency Proceeding relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) the Loans and all other obligations and liabilities (including any fees or expenses that accrue after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) of the Loan Parties (and the other Group Members in the cash of obligations in respect of Cash Management Services) to the Administrative Agent, the Issuing Lender, any other Lender, any applicable Cash Management Bank, and any Qualified Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Cash Management Agreement, any Specified Swap Agreement or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, payment obligations, fees, indemnities, costs, expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent, the Issuing Lender, any other Lender, any applicable Cash Management Bank, to the extent that any applicable Cash Management Agreement requires the reimbursement by any applicable Group Member of any such expenses, and any Qualified Counterparty) that are required to be paid by any Group Member pursuant any Loan Document, Cash Management Agreement, Specified Swap Agreement or otherwise, and Erroneous Payment Subrogation Rights. For the avoidance of doubt, the Obligations shall not include (a) any obligations arising under any warrants or other equity instruments issued by any Loan Party to any Lender, or (b) solely with respect to any Guarantor that is not a Qualified ECP Guarantor, any Excluded Swap Obligations of such Guarantor. “OFAC”: the Office of Foreign Assets Control of the United States Department of the Treasury and any successor thereto. “Operating Documents”: for any Person as of any date, such Person’s constitutional documents, formation documents and/or certificate of incorporation (or equivalent thereof), and, (a) if such Person is a corporation, its bylaws or memorandum and articles of association (or equivalent thereof) in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership, its partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto. “Original Loan Documents”: as defined in Section 10.23(b). “Other Connection Taxes”: with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). “Other Taxes”: all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed


 
with respect to an assignment (other than an assignment made pursuant to Section 2.23). “Overadvance”: as defined in Section 2.8. “Participant”: as defined in Section 10.6(d). “Participant Register”: as defined in Section 10.6(d). “Patriot Act”: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Title III of Pub. L. 107-56, signed into law October 26, 2001. “Payment Recipient”: as defined in Section 9.14(a). “PBGC”: the Pension Benefit Guaranty Corporation, or any successor thereto. “Pension Plan”: an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (a) that is or was at any time maintained or sponsored by any Loan Party or any ERISA Affiliate thereof or to which any Loan Party or any ERISA Affiliate thereof has ever made, or was obligated to make, contributions, and (b) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA. “Periodic Term SOFR Determination Day: as defined in the definition of “Term SOFR”. “Permitted Acquisition”: as defined in Section 7.8(n). “Permitted Convertible Indebtedness”: unsecured Indebtedness of the Borrower that (a) as of the date of issuance thereof contains terms, conditions, covenants, conversion or exchange rights, redemption rights and offer to repurchase rights that, taken as a whole, are typical and customary for notes of such type (as determined by the Borrower in good faith) and (b) is convertible or exchangeable into Capital Stock (other than Disqualified Stock) of the Borrower, cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s Capital Stock or such other securities or property), and cash in lieu of fractional shares of Capital Stock (other than Disqualified Stock) of the Borrower (or other securities or property following a merger event, reclassification or other change of the ordinary shares of the Borrower), cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s Capital Stock or such other securities or property), and cash in lieu of fractional shares of Capital Stock (other than Disqualified Stock) of the Borrower; provided that (i) such Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon any conversion or exchange of such Indebtedness (whether into cash, shares of Capital Stock (other than Disqualified Stock) of the Borrower or any combination thereof), the occurrence of an asset sale, event of default, “change of control” or a “fundamental change” (or other equivalent transaction, however denominated) or following the Borrower’s election to redeem such notes) prior to the Revolving Termination Date, and (ii) no Group Member that is not a Loan Party shall have Guarantee Obligations with respect to obligations of the Borrower thereunder. “Permitted Equity Derivative Transaction”: any call option, warrant or other derivative transaction relating to Borrower’s Capital Stock (or other securities or property following a merger event, reclassification or other change of the common stock of Borrower) purchased or sold in connection with the issuance of any Permitted Convertible Indebtedness and settled in Capital Stock (other than


 
Disqualified Stock) of Borrower, cash or a combination thereof, as the same may be amended, restated, supplemented or otherwise modified from time to time; provided that (a) the aggregate net purchase price for such Permitted Equity Derivative Transactions does not exceed the net cash proceeds received by Borrower from the sale of the Permitted Convertible Indebtedness in connection with which such Permitted Equity Derivative Transactions were entered into and (b) the other terms, conditions and covenants of each such transaction shall be, taken as a whole, customary for transactions of such type (as determined by the Borrower in good faith). “Person”: any natural Person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Plan”: (a) an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan which is or was at any time maintained or sponsored by any Group Member or to which any Group Member has ever made, or was obligated to make, contributions, (b) a Pension Plan, or (c) a Qualified Plan. “Platform”: is any of Debt Domain, DebtX, Intralinks, Syndtrak or a substantially similar electronic transmission system. “Preferred Stock”: the preferred Capital Stock of the Borrower. “Prime Rate”: the rate of interest per annum from time to time published in the money rates section of the Wall Street Journal or any successor publication thereto as the “prime rate” then in effect; provided that if such rate of interest, as set forth from time to time in the money rates section of the Wall Street Journal, becomes unavailable for any reason as determined by the Administrative Agent, the “Prime Rate” shall mean the rate of interest per annum announced by the Administrative Agent as its prime rate in effect at its principal office (such announced Prime Rate not being intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors). “Pro Forma Basis”: with respect to any calculation or determination for any period, in making such calculation or determination on the specified date of determination (the “Determination Date”): (a) pro forma effect will be given to any Indebtedness incurred by the Borrower or any of its Subsidiaries (including by assumption of then outstanding Indebtedness or by a Person becoming a Subsidiary (“Incurred”)) after the beginning of the applicable period and on or before the Determination Date to the extent the Indebtedness is outstanding or is to be Incurred on the Determination Date, as if such Indebtedness had been Incurred on the first day of such period; (b) pro forma calculations of interest on Indebtedness bearing a floating interest rate will be made as if the rate in effect on the Determination Date (taking into account any Swap Agreement applicable to the Indebtedness) had been the applicable rate for the entire reference period; and (c) pro forma effect will be given to: (i) the acquisition or disposition of companies, divisions or lines of businesses by the Group Members, including any acquisition or disposition of a company, division or line of business since the beginning of the reference period by a Person that became a Subsidiary after the beginning of the applicable period; and (ii) the discontinuation of any discontinued operations; in each case of clauses (i) and (ii), that have occurred since the beginning of the applicable period and before the Determination Date as if such events had occurred, and, in the case of any disposition, the proceeds thereof applied, on the first day of such period. To the extent that pro forma effect is to be given to an acquisition or disposition of a company, division or line of business, the pro forma calculation will be calculated in good faith by a responsible financial or accounting officer of the


 
Borrower in accordance with Regulation S-X under the Securities Act based upon the most recent four full fiscal quarters for which the relevant financial information is available. “Pro Forma Financial Statements”: balance sheets, income statements and cash flow statements prepared by the Group Members that give effect (as if such events had occurred on such date) to (a) [reserved], (b) the Loans to be made on the Closing Date and the use of proceeds thereof and (c) the payment of fees and expenses in connection with the foregoing, in each case prepared for (y) the most recently ended fiscal quarter as if such transactions had occurred on such date and (z) on a quarterly basis through the first full fiscal year after the Closing Date or subsequent Borrowing Date, as applicable, and on an annual basis for each fiscal year thereafter through the Term Loan Maturity Date, in each case demonstrating pro forma compliance with the covenants set forth in Section 7.1. “Projections”: as defined in Section 6.2(c). “Properties”: as defined in Section 4.17(a). “Protective Overadvance”: as defined in Section 2.8(b). “Qualified Counterparty”: with respect to any Specified Swap Agreement, any counterparty thereto that is a Lender or an Affiliate of a Lender or, at the time such Specified Swap Agreement was entered into or as of the Closing Date, was the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender. “Qualified ECP Guarantor”: in respect of any Swap Obligation, (a) each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee Obligation of such Guarantor provided in respect of, or the Lien granted by such Guarantor to secure, such Swap Obligation (or guaranty thereof) becomes effective with respect to such Swap Obligation, and (b) any other Guarantor that (i) constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder, or (ii) can cause another Person (including, for the avoidance of doubt, any other Guarantor not then constituting a “Qualified ECP Guarantor”) to qualify as an “eligible contract participant” at such time by entering into a “keepwell, support, or other agreement” as contemplated by Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. “Qualified Plan”: an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (a) that is or was at any time maintained or sponsored by any Loan Party or any ERISA Affiliate thereof or to which any Loan Party or any ERISA Affiliate thereof has ever made, or was ever obligated to make, contributions, and (b) that is intended to be tax-qualified under Section 401(a) of the Code. “Recipient”: the (a) Administrative Agent, (b) any Lender or (c) the Issuing Lender, as applicable. “Recovery Event”: any settlement of or payment in respect of any property or casualty insurance claim (other than any claim under any business interruption policy or cyber insurance policy) or any condemnation proceeding relating to any asset of any Group Member, but for clarity excludes amounts received for post-closing indemnification claims associated with any Permitted Acquisition. “Recurring Revenue”: with respect to the Borrower of any Guarantor, committed recurring revenue (net of contractual discounts but inclusive of contractual upsells) and excess user fees, in each case attributable to services, software licenses and any other recurring services pursuant to a binding written agreement which arise in the ordinary course of such Group Members’ business that (i) meet all


 
of the representations and warranties in Section 4.26 this Agreement; provided that Recurring Revenue for any period shall be determined in a pro forma basis to give effect to any Permitted Acquisitions provided that a quality of earnings reasonably satisfactory to the Administrative Agent has been provided. “Recurring Revenue Leverage Ratio”: as at the last day of any period, the ratio of (a) Consolidated Total Indebtedness on such day, to (b) (i) Annualized Recurring Revenue as of such date multiplied by (ii) the Retention Rate. “Refunded Swingline Loans”: as defined in Section 2.7(b). “Register”: as defined in Section 10.6(c). “Regulation D”: Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation T”: Regulation T of the Board as in effect from time to time. “Regulation U”: Regulation U of the Board as in effect from time to time. “Regulation X”: Regulation X of the Board as in effect from time to time. “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by any Loan Party in connection therewith that are not applied to prepay the Loans or other amounts pursuant to Section 2.12(e) as a result of the reinvestment of such Net Cash Proceeds in accordance with Section 2.12 (c). “Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the Borrower has reinvested the Net Cash Proceeds of such Asset Sale or Recovery Event in accordance with Section 2.12(c). “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier of (a) the date occurring one hundred eighty days (180) after such Reinvestment Event, and (b) the date on which the Group Members shall have determined not to, or shall have otherwise ceased to, acquire or repair assets useful in the Borrower’s business with all or any portion of the relevant Reinvestment Deferred Amount. “Related Parties”: with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates. “Relevant Governmental Body”: the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto. “Replacement Lender”: as defined in Section 2.23. “Required Lenders”: at any time, (a) if only one Lender holds the outstanding Term Loans and the Revolving Commitments, such Lender; and (b) if more than one Lender holds the outstanding Term Loans and Revolving Commitments, then at least two Lenders who hold more than 50% of the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding, and (ii) the Total


 
Revolving Commitments (including, without duplication, the L/C Commitments) then in effect or, if the Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding; provided that for the purposes of this clause (b), the outstanding principal amount of the Term Loans held by any Defaulting Lender and the Revolving Commitments of, and the portion of the Revolving Loans and participations in L/C Exposure and Swingline Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided further that a Lender and its Affiliates shall be deemed one Lender. “Requirement of Law”: as to any Person, the Operating Documents of such Person, and any law, treaty, rule or regulation or the administration, interpretation, implementation or application or determination of an arbitrator or a court or other Governmental Authority (including, for the avoidance of doubt, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III), in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Reserves”: with respect to the Borrowing Base, reserves against Recurring Revenue that the Administrative Agent may, in its good faith reasonable business discretion upon consultation with Borrower, establish from time to time to (a) reflect events, conditions, contingencies or risks which do or may adversely affect (i) the Collateral, (ii) the assets of the Borrower, (iii) the Liens (held by the Administrative Agent for the benefit of the Secured Parties) and other rights of the Administrative Agent in the Collateral, or (b) reserve against any Accounts of the Borrower payable in foreign currencies. “Responsible Officer”: with respect to any Loan Party, the chief executive officer, president, chief financial officer, chief legal officer, treasurer, controller or comptroller of such Loan Party, but in any event, with respect to financial matters, the chief financial officer, treasurer, controller or comptroller of such Loan Party. “Restricted Payments”: as defined in Section 7.6. “Retention Rate” is a percentage equal to the sum of (a) one hundred percent (100%) minus (b) the Churn Rate. “Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof (including in connection with assignments permitted hereunder). The L/C Commitment and the Swingline Commitment are each sublimits of the Total Revolving Commitments. “Revolving Commitment Period”: the period from and including the Closing Date to the Revolving Termination Date. “Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then


 
outstanding, plus (b) such Lender’s L/C Percentage of the aggregate undrawn amount of all outstanding Letters of Credit (including the Existing Letter of Credit) at such time, plus (c) such Lender’s L/C Percentage of the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time, plus (d) such Lender’s Revolving Percentage of the aggregate principal amount of Swingline Loans then outstanding. “Revolving Facility”: the Revolving Commitments and the extensions of credit made thereunder. “Revolving Lender”: each Lender that has a Revolving Commitment or that holds Revolving Loans. “Revolving Loan Conversion”: as defined in Section 3.5(b). “Revolving Loan Funding Office”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders. “Revolving Loan Note”: a promissory note in the form of Exhibit H-1, as it may be amended, supplemented or otherwise modified from time to time. “Revolving Loans”: as defined in Section 2.4(a). “Revolving Percentage”: as to any Revolving Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments or, at any time after the Revolving Commitments of all Lenders shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the aggregate principal amount of all Revolving Loans then outstanding; provided that in the event that the Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Commitments, the Revolving Percentages shall be determined in a manner designed to ensure that the other outstanding Revolving Extensions of Credit shall be held by the Revolving Lenders on a comparable basis. “Revolving Termination Date”: April 29, 2027the earlier of (a) February 27, 2030 and (b) the earliest date that is 91 days prior to the maturity date of any Permitted Convertible Indebtedness. “S&P”: Standard & Poor’s Ratings Services. “Sale Leaseback Transaction”: any arrangement with any Person or Persons, whereby in contemporaneous or substantially contemporaneous transactions a Loan Party sells substantially all of its right, title and interest in any property and, in connection therewith, acquires, leases or licenses back the right to use all or a material portion of such property. “Sanction(s)”: any international economic sanction administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority. “SEC”: the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority. “Second Amendment”: that certain Second Amendment to Amended and Restated Credit Agreement dated as of July 1, 2024 by and among the Borrower, the Guarantors party thereto, the


 
Lenders party thereto and SVB, as Administrative Agent, Issuing Lender and Swingline Lender. “Second Amendment Effective Date”: as defined in the Second Amendment. “Secured Parties”: the collective reference to the Administrative Agent, the Lenders (including any Issuing Lender in its capacity as Issuing Lender and any Swingline Lender in its capacity as Swingline Lender), any Cash Management Bank (in its or their respective capacities as providers of Cash Management Services), and any Qualified Counterparties. “Securities Account”: any “securities account” as defined in the UCC with such additions to such term as may hereafter be made. “Securities Account Control Agreement”: any Control Agreement entered into by the Administrative Agent, a Loan Party and a securities intermediary holding a Securities Account of such Loan Party pursuant to which the Administrative Agent is granted “control” (for purposes of the UCC) over such Securities Account. “Securities Act”: the Securities Act of 1933, as amended from time to time and any successor statute. “Security Documents”: the collective reference to (a) the Guarantee and Collateral Agreement, (b) the Mortgages, (c) each Intellectual Property Security Agreement, (d) each Deposit Account Control Agreement, (e) each Securities Account Control Agreement, (f) all other security documents hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the Obligations of any Loan Party arising under any Loan Document, (g) each Pledge Supplement, (h) each Assumption Agreement, (i) all other security documents hereafter delivered to any applicable Cash Management Bank granting a Lien on any property of any Person to secure the Obligations of any Group Member arising under any Cash Management Agreement, and (j) all financing statements, fixture filings, Patent, Trademark and Copyright filings, assignments, acknowledgments and other filings, documents and agreements made or delivered pursuant to any of the foregoing. “Settlement Date”: as defined in Section 2.4(c). “SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator”: the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “SOFR Administrator’s Website”: the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. “SOFR Borrowing”: as to any Borrowing, the SOFR Loans comprising such Borrowing. “SOFR Determination Day”: as defined in the definition of “Daily Simple SOFR”. “SOFR Loan”: a Loan that bears interest at a rate based on Adjusted Term SOFR, other than, pursuant to clause (c) of the definition of “ABR”. “SOFR Rate Day”: as defined in the definition of “Daily Simple SOFR”.


 
“SOFR Tranche”: the collective reference to SOFR Loans under a particular Facility (other than the L/C Facility), the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day). “Solvency Certificate”: the Solvency Certificate, dated the Closing Date, delivered to the Administrative Agent pursuant to Section 5.1(s), which Solvency Certificate shall be in substantially the form of Exhibit D. “Solvent”: when used with respect to any Person, as of any date of determination, (a) the amount of the “fair value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the “present fair saleable value” of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim,” and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. “Specified Swap Agreement”: any Swap Agreement (other than a Permitted Equity Derivative Transaction) entered into by a Loan Party or a Subsidiary of a Loan Party and any Qualified Counterparty (or any Person who was a Qualified Counterparty as of the Closing Date or as of the date such Swap Agreement was entered into) to the extent permitted under Section 7.13. “Subordinated Debt Document”: any agreement, certificate, document or instrument executed or delivered by any Group Member and evidencing Indebtedness of any Group Member which is subordinated to the Obligations (including payment, lien and remedies subordination terms, as applicable) in a manner approved in writing by the Administrative Agent, and any renewals, modifications, or amendments thereof which are approved in writing by the Administrative Agent. “Subordinated Indebtedness”: Indebtedness of a Loan Party subordinated to the Obligations pursuant to subordination terms (including payment, lien and remedies subordination terms, as applicable) reasonably acceptable to the Administrative Agent and the Required Lenders. For the avoidance of doubt, Permitted Convertible Indebtedness shall not constitute Subordinated Indebtedness “Subsidiary”: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower. “Surety Indebtedness”: as of any date of determination, indebtedness (contingent or otherwise)


 
owing to sureties arising from surety bonds issued on behalf of any Group Member as support for, among other things, their contracts with customers, whether such indebtedness is owing directly or indirectly by such Loan Party or any such Subsidiary. “SVB”: as defined in the preamble hereto. “Swap Agreement”: any agreement with respect to any swap, hedge, forward, future, foreign exchange, currency transactions or derivative transaction or option or similar agreement (including without limitation, any Interest Rate 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 any similar transaction or any combination of these transactions (including, for the avoidance of doubt, any Permitted Equity Derivative Transaction); 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 Group Members shall be deemed to be a “Swap Agreement.” “Swap Obligation”: with respect to any Guarantor, any obligation of such Guarantor to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act. “Swap Termination Value”: in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date any such Swap Agreement has been closed out and termination value determined in accordance therewith, such termination value, and (b) for any date prior to the date referenced in clause (a), the amount determined as the mark-to-market value for such Swap Agreement, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements (which may include a Qualified Counterparty). “Swingline Commitment”: the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding not to exceed $7,500,000. “Swingline Lender”: SVB, in its capacity as the lender of Swingline Loans or such other Lender as the Borrower may from time to time select as the Swingline Lender hereunder pursuant to Section 2.7(f); provided that such Lender has agreed to be a Swingline Lender. “Swingline Loan Note”: a promissory note in the form of Exhibit H-2, as it may be amended, supplemented or otherwise modified from time to time. “Swingline Loans”: as defined in Section 2.6. “Swingline Participation Amount”: as defined in Section 2.7(c). “Synthetic Lease Obligation”: the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment). “Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority,


 
including any interest, additions to tax or penalties applicable thereto. “Term Commitment”: as to any Lender, the obligation of such Lender, if any, to make a Term Loan to the Borrower in an aggregate principal amount not to exceed the amount set forth under the heading “Term Commitment” opposite such Lender’s name on Schedule 1.1A. The aggregate Term Commitments and funded Term Loans as of the Second Amendment Effective Date is $0. “Term Facility”: the Term Commitments and the Term Loans made thereunder. “Term Lender”: each Lender that has a Term Commitment or that holds a Term Loan. “Term Loan”: the term loans made by the Lenders pursuant to Section 2.1. “Term Loan Funding Office”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders. “Term Loan Maturity Date”: April 29, 2026. “Term Loan Note”: a promissory note in the form of Exhibit H-3, as it may be amended, supplemented or otherwise modified from time to time. “Term Percentage”: as to any Term Lender at any time, the percentage which such Lender’s Term Commitments and funded Term Loans then constitutes of the aggregate Term Commitments and funded Term Loans of all Lenders. “Term SOFR”: (a) for any calculation with respect to a 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. (New York City 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 (b) for any calculation with respect to an 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. (New York City 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


 
0.10% One month 0.10% SOFR Loans: Three months Business Day is not more than three (3) U.S. Government Securities Business Days prior to such ABR SOFR Determination Day. “Term SOFR Adjustment”: for any calculation with respect to an ABR Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable Type of such Loan and (if applicable) Interest Period therefor: ABR Loans: 0.15% Interest Period Six months Percentage 0.25% “Term SOFR Administrator”: the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion). “Term SOFR Reference Rate”: the forward-looking term rate based on SOFR. “Term SOFR Borrowing”: as to any Borrowing, the Loans bearing interest at a rate based on Adjusted Term SOFR comprising such Borrowing other than pursuant to clause (c) of the definition of “ABR”. “Third Amendment”: that certain Third Amendment to Amended and Restated Credit Agreement dated as of February 27, 2025 by and among the Borrower, the Guarantors party thereto, the Lenders party thereto and SVB, as Administrative Agent, Issuing Lender and Swingline Lender. “Third Amendment Effective Date”: as defined in the Third Amendment. “Total Credit Exposure”: is, as to any Lender at any time, the unused Commitments, Revolving Extensions of Credit and outstanding Term Loans of such Lender at such time. “Total L/C Commitments”: at any time, the sum of all L/C Commitments at such time, as the same may be reduced from time to time pursuant to Section 2.10 or 3.5(b). “Total Revolving Commitments”: at any time, the aggregate amount of the Revolving Commitments then in effect. “Total Revolving Extensions of Credit”: at any time, the aggregate amount of the Revolving Extensions of Credit outstanding at such time. “Trade Date”: as defined in Section 10.6(b)(i)(B). “Transactions”: as defined in Section 5.1(b). “Transferee”: any Eligible Assignee or Participant.


 
“Type”: as to any Loan, its nature as an ABR Loan or a SOFR Loan. “UK Financial Institution”: 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 falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. “Unfriendly Acquisition”: any acquisition that has not, at the time of the first public announcement of an offer relating thereto, been approved by the board of directors (or other legally recognized governing body) of the Person to be acquired; except that with respect to any acquisition of a non-U.S. Person, an otherwise friendly acquisition shall not be deemed to be unfriendly if it is not customary in such jurisdiction to obtain such approval prior to the first public announcement of an offer relating to a friendly acquisition. “Uniform Commercial Code” or “UCC”: the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in the State of New York, or as the context may require, any other applicable jurisdiction. “United States” and “U.S.”: the United States of America. “USCRO”: the U.S. Copyright Office. “USPTO”: the U.S. Patent and Trademark Office. “U.S. Government Securities Business Day”: 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. “U.S. Person”: any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code. “U.S. Tax Compliance Certificate”: as defined in Section 2.20(f). “Withholding Agent”: as applicable, any of any applicable Loan Party and the Administrative Agent, as the context may require. “Write-Down and Conversion Powers”: (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. . 1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto. (b) As used herein and in the other Loan Documents, and in any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, (v) references to a given time of day shall, unless otherwise specified, be deemed to refer to Pacific time, and (vi) references to agreements (including this Agreement) or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated, amended and restated or otherwise modified from time to time. Notwithstanding the foregoing clause (i), for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of any Group Member shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded. (c) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, unless otherwise specified. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (ii) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, and (iii) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time. (d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. (e) Any reference in any Loan Document to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a Division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a Division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person. Any Division of a limited liability company shall constitute a separate Person under the Loan Documents (and each Division of any limited liability company that is a


 
Subsidiary, joint venture or any other like term shall also constitute such a Person) on the first date of its existence. In connection with any Division, if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then such asset shall be deemed to have been transferred from the original Person to the subsequent Person. (f) Notwithstanding anything to the contrary herein, any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease or financing lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP prior to the adoption of FAS 842, such lease shall not be considered a Capital Lease Obligation, capital lease or financing lease, and all calculations and deliverables under this Agreement and the other Loan Documents shall be made or delivered, as applicable, in accordance therewith. 1.3 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). 1.4 Rates. The Administrative Agent does not warrant or accept 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 ABR, Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or 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) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, ABR, 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 ABR, Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR , any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain ABR, Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark, in each case, pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other Person 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. SECTION 2 AMOUNT AND TERMS OF COMMITMENTS 2.1 Term Commitments. Subject to the terms and conditions hereof, each Term Lender severally agrees to make a Term Loan to the Borrower on the Closing Date in an amount equal to the amount of the Term Commitment of such Lender. The Term Loans may from time to time be SOFR Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.


 
June 30, 2023 through March 31, 2024 $1,062,500.00 Installment Payment Dates June 30, 2024 through the Term Loan Maturity Date Installment Amount $2,125,000.00 2.2 Procedure for Term Loan Borrowing. The Borrower shall give the Administrative Agent an irrevocable Notice of Borrowing (which must be received by the Administrative Agent prior to 10:00 A.M. one (1) Business Day prior to the anticipated Closing Date) requesting that the Term Lenders make the Term Loans on the Closing Date and specifying the amount to be borrowed. Unless otherwise agreed by the Administrative Agent, (i) the Term Loans made on the Closing Date shall initially be ABR Loans and (ii) no Term Loan may be converted into or continued as a SOFR Loan having an Interest Period in excess of one month prior to the date that is 30 days after the Closing Date. Upon receipt of such Notice of Borrowing, the Administrative Agent shall promptly notify each Term Lender thereof. Not later than 10:00 A.M. on the Closing Date each Term Lender shall make available to the Administrative Agent at the Term Loan Funding Office an amount in immediately available funds equal to the Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall credit the account of the Borrower on the books of such office of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds or, if so specified in the Flow of Funds Agreement, the Administrative Agent shall wire transfer or otherwise credit all or a portion of such aggregate amounts to the Existing Agent (for application against amounts in accordance with the wire instructions specified in the Flow of Funds Agreement. 2.3 Repayment of Term Loans. Beginning on June 30, 2023, the Term Loans shall be repaid in consecutive quarterly installments on the last day of each fiscal quarter, each of which installments shall be in an amount equal to such Lender’s Term Percentage multiplied by the installment amount set forth below opposite such installment payment date: To the extent not previously paid, all Term Loans shall be due and payable on the Term Loan Maturity Date, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment. 2.4 Revolving Commitments. (a) Subject to the terms and conditions hereof, including implementation of Reserves, each Revolving Lender severally agrees to make revolving credit loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to the aggregate outstanding amount of the Swingline Loans, the aggregate undrawn amount of all outstanding Letters of Credit, and the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans, incurred on behalf of the Borrower and owing to such Lender, does not exceed the amount of such Lender’s Revolving Commitment. In addition, (A) such aggregate obligations shall not at any time exceed the lesser of (i) the Total Revolving Commitments in effect at such time, and (ii) the Borrowing Base at such time and (B) in no event shall the aggregate undrawn amount of all outstanding Letters of Credit at such time, the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time, and the aggregate principal balance of any Revolving Loans outstanding at such time the aggregate principal balance of any Term Loans outstanding at such time, collectively exceed the Available Total Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be SOFR Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in


 
accordance with Sections 2.5 and 2.13. Borrowings of more than one Type may be outstanding at the same time; provided that, there shall not be more than a total of seven (7) SOFR Borrowings outstanding at any time. (b) The Borrower shall repay all outstanding Revolving Loans (including all Overadvances and Protective Overadvances) on the Revolving Termination Date. 2.5 Procedure for Revolving Loan Borrowing. The Borrower may borrow under the Revolving Commitments during the Revolving Commitment Period on any Business Day; provided that the Borrower shall give the Administrative Agent an irrevocable Notice of Borrowing (which must be received by the Administrative Agent prior to 10:00 A.M. (a) three (3) U.S. Government Securities Business Days prior to the requested Borrowing Date, in the case of SOFR Loans, or (b) one (1) Business Day prior to the requested Borrowing Date, in the case of ABR Loans) (provided that any such Notice of Borrowing of ABR Loans under the Revolving Facility to finance payments under Section 3.5(a) may be given not later than 10:00 A.M. on the date of the proposed borrowing), in each such case specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date, (iii) the respective amounts of each such Type of Loan, (iv) in the case of SOFR Loans, the respective lengths of the initial Interest Period therefor, and (v) instructions for remittance of the proceeds of the applicable Loans to be borrowed. If no Interest Period is specified with respect to any requested SOFR Loan, the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Unless otherwise agreed by the Administrative Agent in its sole discretion, no Revolving Loan may be made as, converted into or continued as a SOFR Loan having an Interest Period in excess of one month prior to the date that is 30 days after the Closing Date. Each borrowing under the Revolving Commitments shall be in an amount equal to in the case of ABR Loans or SOFR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof (or, if the then Available Revolving Commitment are less than $1,000,000, such lesser amount); provided that the Swingline Lender may request, on behalf of the Borrower, borrowings under the Revolving Commitments that are ABR Loans in other amounts pursuant to Section 2.7. Upon receipt of any such Notice of Borrowing from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof. Each Revolving Lender will make the amount of its pro rata share of each such borrowing available to the Administrative Agent for the account of the Borrower at the Revolving Loan Funding Office prior to 10:00 A.M. on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting such account as is designated in writing to the Administrative Agent by the Borrower with the aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and in like funds as received by the Administrative Agent. No Revolving Loan will be made on the Closing Date. 2.6 Swingline Commitment. Subject to the terms and conditions hereof, the Swingline Lender agrees to make available a portion of the credit accommodations otherwise available to the Borrower under the Revolving Commitments from time to time during the Revolving Commitment Period by making swing line loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower; provided that (a) the aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline Commitment then in effect, (b) the Borrower shall not request, and the Swingline Lender shall not make, any Swingline Loan if, after giving effect to the making of such Swingline Loan, the Available Revolving Commitment would be less than zero, and (c) the Borrower shall not use the proceeds of any Swingline Loan to refinance any then outstanding Swingline Loan. During the Revolving Commitment Period, the Borrower may use the Swingline Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. Swingline Loans shall be ABR Loans only. The Borrower shall repay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the Revolving Termination Date. The Swingline Lender shall not make a Swingline Loan during the period commencing at the time it has received notice (by


 
telephone or in writing) from the Administrative Agent at the request of any Lender, acting in good faith, that one or more of the applicable conditions specified in Section 5.2 (other than Section 5.2(d)) is not then satisfied and has had a reasonable opportunity to react to such notice and ending when such conditions are satisfied or duly waived. 2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans. (a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans the Borrower shall give the Swingline Lender irrevocable telephonic notice (which telephonic notice must be received by the Swingline Lender not later than 10:00 A.M. on the proposed Borrowing Date) confirmed promptly in writing by a Notice of Borrowing, specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Commitment Period), and (iii) instructions for the remittance of the proceeds of such Loan. Each borrowing under the Swingline Commitment shall be in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof. Promptly thereafter, on the Borrowing Date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available to the Borrower an amount in immediately available funds equal to the amount of the Swingline Loan to be made by depositing such amount in the account designated in writing to the Administrative Agent by the Borrower. Unless a Swingline Loan is sooner refinanced by the advance of a Revolving Loan pursuant to Section 2.7(b), such Swingline Loan shall be repaid by the Borrower no later than five (5) Business Days after the advance of such Swingline Loan. (b) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), on one Business Day’s telephonic notice given by the Swingline Lender no later than 12:00 P.M. and promptly confirmed in writing, request each Revolving Lender to make, and each Revolving Lender hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving Lender’s Revolving Percentage of the aggregate amount of such Swingline Loan (each a “Refunded Swingline Loan”) outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Lender shall make the amount of such Revolving Loan available to the Administrative Agent at the Revolving Loan Funding Office in immediately available funds, not later than 10:00 A.M. one Business Day after the date of such notice. The proceeds of such Revolving Loan shall immediately be made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Refunded Swingline Loan. The Borrower irrevocably authorizes the Swingline Lender to charge the Borrower’s accounts with the Administrative Agent (up to the amount available in each such account) immediately to pay the amount of any Refunded Swingline Loan to the extent amounts received from the Revolving Lenders are not sufficient to repay in full such Refunded Swingline Loan. (c) If prior to the time that the Borrower has repaid the Swingline Loans pursuant to Section 2.7(a) or a Revolving Loan has been made pursuant to Section 2.7(b), one of the events described in Section 8.1(f) shall have occurred or if for any other reason, as determined by the Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section 2.7(b), each Revolving Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in Section 2.7(b) or on the date requested by the Swingline Lender (with at least one (1) Business Days’ notice to the Revolving Lenders), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to (i) such Revolving Lender’s Revolving Percentage times (ii) the sum of the aggregate principal amount of the outstanding Swingline Loans that were to have been repaid with such Revolving Loans.


 
(d) Whenever, at any time after the Swingline Lender has received from any Revolving Lender such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Revolving Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender. (e) Each Revolving Lender’s obligation to make the Loans referred to in Section 2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Lender, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. (f) The Swingline Lender may resign at any time by giving 30 days’ prior notice to the Administrative Agent, the Lenders and the Borrower. Following such notice of resignation from the Swingline Lender, the Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the Required Lenders and the successor Swingline Lender. After the resignation or replacement of the Swingline Lender hereunder, the retiring Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of the Swingline Lender under this Agreement and the other Loan Documents with respect to Swingline Loans made by it prior to such resignation or replacement, but shall not be required or permitted to make any additional Swingline Loans. 2.8 Overadvances; Protective Overadvances. (a) If at any time or for any reason the aggregate amount of (A) all Revolving Extensions of Credit of all of the Lenders exceeds the lesser of (x) the amount of the Total Revolving Commitments then in effect, and (y) the amount of the Borrowing Base then in effect or (B) the aggregate undrawn amount of all outstanding Letters of Credit at such time, the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time, the aggregate principal balance of any Revolving Loans outstanding at such time and the aggregate principal balance of any Term Loans outstanding at such time exceeds the Available Total Commitment (any such excess, an “Overadvance”), the Borrower shall immediately pay the full amount of such Overadvance to the Administrative Agent, without notice or demand, for application against the Revolving Extensions of Credit in accordance with the terms hereof or if no Revolving Extensions of Credit are outstanding, prepay the Term Loans in accordance with Section 2.12(b). Any prepayment of any Revolving Loan that is a SOFR Loan hereunder shall be subject to Borrower’s obligation to pay any amounts owing pursuant to Section 2.21. (b) Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent, in its sole discretion, may make Revolving Loans to the Borrower on behalf of the Lenders, so long as the aggregate amount of such Revolving Loans shall not exceed the lesser of (y) 5%


 
of the Borrowing Base (if then applicable) and (z) 5% of the Commitments, if the Administrative Agent, in its reasonable credit judgment, deems that such Revolving Loans are necessary or desirable (i) to protect all or any portion of the Collateral, (ii) to enhance the likelihood or maximize the amount of repayment of the Loans and the other Obligations or (iii) to pay any other amount chargeable to the Borrower pursuant to this Agreement (such Revolving Loans, “Protective Overadvances”); provided that (A) in no event shall the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments then in effect and (B) the Borrower shall repay each Protective Overadvance on the date which the earlier of (y) the 30th day after the date of incurrence of such Protective Overadvance and (z) the date the Required Lenders provide written notice to the Administrative Agent and the Borrower requiring the Borrower to repay such Protective Overadvance. Each applicable Lender shall be obligated to advance to the Borrower its Revolving Percentage of each Protective Overadvance made in accordance with this Section 2.8(b). If Protective Overadvances are made in accordance with the preceding sentence, then all Revolving Lenders shall be bound to make, or permit to remain outstanding, such Protective Overadvances based upon their Revolving Percentages in accordance with the terms of this Agreement. All Protective Overadvances shall be secured by the Collateral and shall bear interest as provided in this Agreement for Revolving Loans generally. 2.9 Fees. (a) Fees. The Borrower agrees to pay to the Administrative Agent the fees specified in the Fee Letter (b) Commitment Fee. As additional compensation for the Revolving Commitments, the Borrower shall pay to the Administrative Agent for the account of the Lenders, in arrears, on the last day or each quarter prior to the Revolving Termination Date and on the Revolving Termination Date, a fee for the Borrower’s non-use of available funds in an amount equal to the Commitment Fee Rate per annum multiplied by the difference between (x) the Total Revolving Commitments (as they may be reduced from time to time) and (y) the sum of (A) the average for the period of the daily closing balance of the Revolving Loans, excluding the aggregate principal amount of Swingline Loans which shall be deemed to be zero for purposes hereof, (B) the aggregate undrawn amount of all Letters of Credit outstanding at such time and (C) the aggregate amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans at such time. (c) Agency Fees. The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in the Fee Letter and to perform any other obligations contained therein. (d) Fees Nonrefundable. All fees payable under this Section 2.9 shall be fully earned on the date paid and nonrefundable. (e) Increase in Fees. At any time an Event of Default pursuant to Section 8.1(a) or Section 8.1(f) occurs or is continuing or at the request of the Required Lenders after an Event of Default has occurred and is continuing, the amount of any of the foregoing fees due under subsections (a),(b) and (c) shall be increased by adding 2.00% per annum thereto.


 
2.10 Termination or Reduction of Revolving Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments; provided that no such termination or reduction of the Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Available Revolving Commitment. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Commitments then in effect; provided further, if in connection with any such reduction or termination of the Revolving Commitments a SOFR Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21. The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the L/C Commitments or, from time to time, to reduce the amount of the L/C Commitments; provided that no such termination or reduction of L/C Commitments shall be permitted if, after giving effect thereto, the Total L/C Commitments shall be reduced to an amount that would result in the aggregate L/C Exposure exceeding the Total L/C Commitments (as so reduced). Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently the L/C Commitments then in effect. Any notice of termination or reduction given pursuant to this Section 2.10 may be conditioned upon the effectiveness of other credit facilities or other transactions specified therein, 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. 2.11 Optional Loan Prepayments. The Borrower may at any time and from time to time prepay the Loans, in whole or in part, upon irrevocable notice delivered to the Administrative Agent no later than 10:00 A.M. three (3) U.S. Government Securities Business Days prior thereto, in the case of SOFR Loans, and no later than 10:00 A.M. one (1) Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and amount of the proposed prepayment; provided that if a SOFR Loan is prepaid, in whole or in part, on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21; provided further that if such notice of prepayment indicates that such prepayment is to be funded with the proceeds of a refinancing or other transactions specified therein, such notice of prepayment may be revoked if the financing is not consummated. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple thereof. Partial prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof. 2.12 Mandatory Prepayments. (a) [reserved]. (b) If any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2 but including any Overadvance set forth in Section 2.8(a), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(e). (c) Except as provided below, if on any date any Group Member shall receive Net Cash Proceeds in the aggregate amount exceeding $2,000,000 in any fiscal year from any Asset Sale or Recovery Event, then such Net Cash Proceeds shall be applied within 2 Business Days of receipt toward


 
the prepayment of the Loans and other amounts as set forth in Section 2.12(e); provided that notwithstanding the foregoing, (i) as long as no Event of Default has occurred and is continuing, the Group Members shall have the option to reinvest such Net Cash Proceeds on or before the Reinvestment Prepayment Date in assets of the general type used in the business of the Group Members and (ii) to the extent any Net Cash Proceeds therefrom have not been so reinvested by the Reinvestment Prepayment Date, then, at such time, any Net Cash Proceeds not reinvested shall be applied toward the prepayment of the Loans and other amounts as set forth in Section 2.12(e). (d) [reserved]. (e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans in reverse order of maturity and in accordance with Sections 2.3 and 2.18(b) (provided that any Term Lender may decline any such prepayment (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed first, to the prepayment, on a pro rata basis, of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts; second, to the extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans in accordance with Section 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); and third, to the extent of any residual, if no Term Loans or Revolving Loans remain outstanding, to the replacement of outstanding Letters of Credit and/or the deposit of an amount in cash (in an amount not to exceed 105% of the then existing L/C Exposure) in a Cash Collateral account established with the Administrative Agent for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender. Each prepayment of the Loans under this Section 2.12 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans, in the event all Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of such prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile not later than three (3) Business Days prior to the Mandatory Prepayment Date. (f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction and (ii) to the extent practicable, at least ten days prior written notice of such prepayment or reduction (and the Administrative Agent shall promptly provide the same to each Lender). Each notice of prepayment shall specify the prepayment or reduction date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. (g) No prepayment fee shall be payable in respect of any mandatory prepayments made pursuant to this Section 2.12. 2.13 Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert SOFR Loans to ABR Loans by giving the Administrative Agent prior notice in a Notice of Conversion/Continuation of such election no later than 10:00 A.M. one (1) Business Day prior to the proposed conversion date; provided


 
that any such conversion of SOFR Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to SOFR Loans by giving the Administrative Agent prior notice in a Notice of Conversion/Continuation of such election no later than 10:00 A.M. three (3) U.S. Government Securities Business Days prior to the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor); provided that no ABR Loan may be converted into a SOFR Loan when any Event of Default has occurred and is continuing. Upon receipt of any such notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If no Interest Period is specified with respect to any SOFR Loan in a Notice of Conversion/Continuation delivered by the Borrower to the Administrative Agent, the Borrower shall be deemed to have selected an Interest Period of one month’s duration. (b) The Borrower may elect from time to time to continue any SOFR Loan by giving the Administrative Agent prior notice of such election in a Notice of Conversion/Continuation, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such SOFR Loan; provided that no SOFR Loan may be continued as such when any Event of Default has occurred and is continuing; provided further that (x) if the Borrower shall fail to give any required notice as described above in this paragraph, upon the expiration of the then current Interest Period, such SOFR Loans shall be automatically continued as SOFR Loans bearing interest at a rate based upon Adjusted Term SOFR and with an Interest Period of the same length as then expiring Interest Period or (y) if such continuation is not permitted pursuant to the preceding proviso, such SOFR Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. (c) After the occurrence and during the continuance of an Event of Default, (i) the Borrower may not elect to have a Loan be made or continued as, or converted to, a SOFR Loan after the expiration of any Interest Period then in effect for such Loan and (ii), any Notice of Conversion/Continuation given by the Borrower with respect to a requested conversion/continuation that has not yet occurred shall, at the Administrative Agent’s option, be deemed to be rescinded by the Borrower and be deemed a request to convert or continue Loans referred to therein as ABR Loans. 2.14 Limitations on SOFR Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of SOFR Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the SOFR Loans comprising each SOFR Tranche shall be equal to $1,000,000 or a whole multiple of $100,000 in excess thereof (or such lesser amount as shall represent all of the SOFR Loans then outstanding), and (b) no more than seven (7) SOFR Tranches shall be outstanding at any one time. 2.15 Interest Rates and Payment Dates. (a) Each SOFR Loan shall bear interest at a rate per annum equal to Adjusted Term SOFR for the Interest Period therefor plus the Applicable Margin. (b) Each ABR Loan (including any Swingline Loan) shall bear interest at a rate per annum equal to (i) the ABR plus (ii) the Applicable Margin. (c) During the continuance of an Event of Default, all outstanding Loans and Letter of Credit Fees shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2.00% (the “Default Rate”).


 
(d) Interest shall be payable in arrears on each Interest Payment Date; provided that (x) interest accruing pursuant to Section 2.15(c) shall be payable from time to time on demand and (y) in the event of any conversion of any SOFR Loan prior to the end of the Interest Period therefor, accrued interest on such SOFR Loan and any amounts owing pursuant to Section 2.21 shall be payable on the effective date of such conversion. 2.16 Computation of Interest and Fees; Conforming Changes. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. All interest hereunder on any Loan shall be computed on a daily basis based upon the outstanding principal amount of such Loan as of the applicable date of determination. Any change in the interest rate on a Loan resulting from a change in the ABR shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate. (b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.16(a). (c) In connection with the use or administration of any Benchmark, the Administrative Agent shall 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 shall 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 such Benchmark. 2.17 Inability to Determine Interest Rate; Benchmark Replacement Setting. (a) Inability to Determine Interest Rate. Subject to Section 2.17(b), if, as of any date: (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or (ii) the Required Lenders determine that for any reason, in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that “Adjusted Term SOFR” for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent, the Administrative Agent will promptly so notify the Borrower and each Lender. Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR Loans shall be suspended (to the extent of the affected SOFR Loans or, in the case of a Term SOFR Borrowing, 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, (i) 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, in the case of a Term SOFR Borrowing, 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 (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans immediately or, in the case of a Term SOFR Borrowing, at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.21. Subject to Section 2.17(b), if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, in each case on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent, in consultation with the Borrower, without reference to clause (c) of the definition of “ABR” until the Administrative Agent revokes such determination. (b) Benchmark Replacement Setting. (i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the affected Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis. (ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, 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. (iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.17(b)(iv) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17(b), including any determination with respect


 
to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.17(b). (iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is 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 (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is 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. (v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, (i) the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into 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 ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. 2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments shall be made pro rata according to the respective Term Percentages, L/C Percentages or Revolving Percentages, as the case may be, of the relevant Lenders. (b) Except as otherwise provided herein, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans (whether optional or mandatory) shall be applied to reduce the then remaining installments of the Term Loans in inverse order or maturity based upon the respective then remaining principal amounts thereof. Except as otherwise may be agreed by the Borrower and the Required Lenders, any prepayment of Loans shall be applied to the then outstanding Term Loans on a pro rata basis regardless of type. Amounts prepaid on account of the Term Loans may not be reborrowed.


 
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders. (d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff and shall be made prior to 10:00 A.M. on the due date thereof to the Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. Any payment received by the Administrative Agent after 10:00 A.M. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment hereunder (other than payments on the SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a SOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension. (e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to the proposed date of any borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date in accordance with Section 2, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender and the Borrower severally agree to pay to the Administrative Agent forthwith, on demand, such corresponding amount with interest thereon, for each day from and including the date on which such amount is made available to the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, a rate equal to 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 compensation, and (ii) in the case of a payment to be made by the Borrower, the rate per annum applicable to ABR Loans under the relevant Facility. 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 its share of the applicable borrowing to the Administrative Agent, then the amount so paid 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. (f) 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 Issuing Lender 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 Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Lender, 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 compensation. Nothing herein shall be deemed to limit the rights of Administrative Agent or any Lender against any Loan Party. (g) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Section 5.1 or Section 5.2 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (h) The obligations of the Lenders hereunder to (i) make Term Loans, (ii) make Revolving Loans, (iii) fund its participations in L/C Disbursements in accordance with its respective L/C Percentage, (iv) fund its respective Swingline Participation Amount of any Swingline Loan, and (v) make payments pursuant to Section 9.7, as applicable, are several and not joint. The failure of any Lender to make any such Loan, to fund any such participation or to make any such payment under Section 9.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.7. (i) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. (j) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees, Overadvances and Protective Overadvances then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees, Overadvances and Protective Overadvances then due to such parties, and (ii) second, toward payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. (k) If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the principal of or interest on any Loan made by it, its participation in the L/C Exposure or other obligations hereunder, as applicable (other than pursuant to a provision hereof providing for non-pro rata treatment), in excess of its Term Percentage, Revolving Percentage or L/C Percentage, as applicable, of such payment on account of the Loans or participations obtained by all of the Lenders, such Lender shall (a) notify the Administrative Agent of the receipt of such payment, and (b) within five (5) Business Days of such receipt purchase (for cash at face value) from the other Term Lenders, Revolving Lenders or L/C Lenders, as applicable (through the Administrative Agent), without recourse, such participations in the Term Loans or Revolving Loans made by them and/or participations in the L/C Exposure held by them, as applicable, or make such other adjustments as shall be equitable, as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of the other Lenders in accordance with their respective Term Percentages, Revolving Percentages or L/C Percentages, as applicable; provided, however, 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 paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment or sale of a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any of


 
its Affiliates (as to which the provisions of this paragraph shall apply). The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.18(k) may exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. No documentation other than notices and the like referred to in this Section 2.18(k) shall be required to implement the terms of this Section 2.18(k). The Administrative Agent shall keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased pursuant to this Section 2.18(k) and shall in each case notify the Term Lenders, the Revolving Lenders or the L/C Lenders, as applicable, following any such purchase. The provisions of this Section 2.18(k) shall not be construed to apply to (i) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (ii) the application of Cash Collateral provided for in Section 3.10, or (iii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or sub-participations in any L/C Exposure to any assignee or participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply). The Borrower consents on behalf of itself and each other Loan Party 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 each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation. For the avoidance of doubt, no amounts received by the Administrative Agent or any Lender from any Guarantor that is not a Qualified ECP Guarantor shall be applied in partial or complete satisfaction of any Excluded Swap Obligations. (l) Notwithstanding anything to the contrary in this Agreement, the Administrative Agent may, in its discretion at any time or from time to time, without the Borrower’s request and even if the conditions set forth in Section 5.2 would not be satisfied, make a Revolving Loan in an amount equal to the portion of the Obligations constituting overdue interest and fees and Swingline Loans from time to time due and payable to itself, any Revolving Lender, the Swingline Lender or the Issuing Lender, and apply the proceeds of any such Revolving Loan to those Obligations; provided that after giving effect to any such Revolving Loan, the aggregate outstanding Revolving Loans will not exceed the Total Revolving Commitments then in effect. 2.19 Illegality; Requirements of Law. (a) Illegality. If any Lender determines that any Requirement of Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, Adjusted Term SOFR, Term SOFR or Term SOFR Reference Rate, or to determine or charge interest based upon SOFR, Adjusted Term SOFR, Term SOFR or Term SOFR Reference Rate, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent) (an “Illegality Notice”), (i) any obligation of the Lenders to make, and the right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR Loans, shall be suspended, and (ii) the interest rate on ABR Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to SOFR component of the definition of “ABR”, in each case until each affected Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. 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 (the interest rate on which ABR Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to SOFR component of the definition of “ABR”), on the last day of the Interest Period 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, in each case, until the Administrative Agent is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon, Adjusted Term SOFR, Term SOFR or Term SOFR Reference Rate. 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 2.21. (b) Requirements of Law. If the adoption of or any change in any Requirement of Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority made subsequent to the date hereof: (i) shall subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Connection Income Taxes) on its Loans, Loan principal, Letters of Credit, Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; (ii) shall impose, modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board 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)), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of or credit extended or participated in by, any Lender; or (iii) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining or of maintaining its obligation to make such Loans, or to increase the cost to such Lender or such other Recipient of issuing, maintaining or participating in Letters of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum receivable or received by such Lender or other Recipient hereunder in respect thereof (whether of principal, interest or any other amount), then, in any such case, upon the request of such Lender or other Recipient, the Borrower will promptly pay such Lender or other Recipient, as the case may be, any additional amount or amounts necessary to compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered. If any Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled. (c) If any Lender determines that any change in any Requirement of Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by the Issuing Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such change in such Requirement of Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or


 
amounts as will compensate such Lender or the Issuing Lender or such Lender’s or Issuing Lender’s holding company for any such reduction suffered. (d) For purposes of this Agreement, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case (i) and (ii) be deemed to be a change in any Requirement of Law, regardless of the date enacted, adopted or issued. (e) A certificate as to any additional amounts payable pursuant to paragraphs (b), (c), or (d) of this Section submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation. Notwithstanding anything to the contrary in this Section 2.19, the Borrower shall not be required to compensate a Lender pursuant to this Section 2.19 for any amounts incurred more than nine months prior to the date that such Lender notifies the Borrower of the change in the Requirement of Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor; provided that if the circumstances giving rise to such claim have a retroactive effect, then such nine-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower arising pursuant to this Section 2.19 shall survive the Discharge of Obligations and the resignation of the Administrative Agent. 2.20 Taxes. For purposes of this Section 2.20, the term “Lender” includes the Issuing Lender and the term “applicable law” includes FATCA. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Requirements of Law, and the Borrower shall, and shall cause each other Loan Party, to comply with the requirements set forth in this Section 2.20. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.20) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (b) Payment of Other Taxes. The Borrower shall, and shall cause each other Loan Party to, timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes applicable to such Loan Party. (c) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.20, the Borrower shall, or shall


 
cause such other Loan Party to, deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. (d) Indemnification by Loan Parties. The Borrower shall, and shall cause each other Loan Party to, jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.20) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto (including any recording and filing fees with respect thereto or resulting therefrom and any liabilities with respect to, or resulting from, any delay in paying such Indemnified Taxes), whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. If any Loan Party fails to pay any Indemnified Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, such Loan Party shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. (e) Indemnification by Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.20(e). (f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably 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. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.20(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if the Lender is not legally entitled to complete, execute or deliver such documentation or, in the Lender’s reasonable judgment, such


 
completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person, (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form); or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of 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 (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender 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 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 and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iii) Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so. Each Foreign Lender shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a Foreign Lender shall not be required to deliver any form pursuant to this paragraph that such Foreign Lender is not legally able to deliver. (g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.20(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.20(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.20(g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (h) Survival. Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender and the Discharge of Obligations.


 
2.21 Indemnity. In the event of (a) the payment of any principal of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any SOFR 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 2.23), then, in any such event, the Borrower shall compensate each Lender for any loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof. 2.22 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.19 or Section 2.20, with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate a different lending office for funding or booking its Loans affected by such event or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.19 or 2.20, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender; provided that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.19 or Section 2.20. The Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment made at the request of the Borrower. 2.23 Substitution of Lenders. Upon the receipt by the Borrower of any of the following (or in the case of clause (a) below, if the Borrower is required to pay any such amount), with respect to any Lender (any such Lender described in clauses (a) through (c) below being referred to as an “Affected Lender” hereunder): (a) a request from a Lender for payment of Indemnified Taxes or additional amounts under Section 2.20 or of increased costs pursuant to Section 2.19(b) or Section 2.19(c) (and, in any such case, such Lender has declined or is unable to designate a different lending office in accordance with Section 2.22 or is a Non-Consenting Lender); (b) a notice from the Administrative Agent under Section 10.1(b) that one or more Minority Lenders are unwilling to agree to an amendment or other modification approved by the Required Lenders and the Administrative Agent; or (c) notice from the Administrative Agent that a Lender is a Defaulting Lender; then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent and such Affected Lender: (i) request that one or more of the other Lenders acquire and assume all or part of such Affected Lender’s Loans and Commitment; or (ii) designate a replacement lending institution (which shall be an Eligible Assignee) to acquire and assume all or a ratable part of such Affected Lender’s Loans and Commitment (the replacing Lender or lender in (i) or (ii) being a “Replacement Lender”); provided, however, that the Borrower shall be liable for the payment upon demand of all costs and other amounts arising under Section 2.21 that result from the acquisition of any Affected Lender’s Loan and/or Commitment (or any portion thereof) by a Lender or Replacement


 
Lender, as the case may be, on a date other than the last day of the applicable Interest Period with respect to any SOFR Loans then outstanding; and provided further, however, that if the Borrower elects to exercise such right with respect to any Affected Lender under clauses (a) or (b) of this Section 2.23, then the Borrower shall be obligated to replace all Affected Lenders under such clauses. The Affected Lender replaced pursuant to this Section 2.23 shall be required to assign and delegate, without recourse, all of its interests, rights and obligations under this Agreement and the related Loan Documents to one or more Replacement Lenders that so agree to acquire and assume all or a ratable part of such Affected Lender’s Loans and Commitment upon payment to such Affected Lender of an amount (in the aggregate for all Replacement Lenders) equal to 100% of the outstanding principal of the Affected Lender’s Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from such Replacement Lenders (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts, including amounts under Section 2.21 hereof). Any such designation of a Replacement Lender shall be effected in accordance with, and subject to the terms and conditions of, the assignment provisions contained in Section 10.6 (with the assignment fee to be paid by the Borrower in such instance), and, if such Replacement Lender is not already a Lender hereunder or an Affiliate of a Lender or an Approved Fund, shall be subject to the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, with respect to any assignment pursuant to this Section 2.23, (a) in the case of any such assignment resulting from a claim for compensation under Section 2.19 or payments required to be made pursuant to Section 2.20, such assignment shall result in a reduction in such compensation or payments thereafter; (b) such assignment shall not conflict with applicable law and (c) in the case of any assignment resulting from a Lender being a Minority Lender referred to in clause (b) of this Section 2.23, the applicable assignee shall have consented to the applicable amendment, waiver or consent. Notwithstanding the foregoing, an Affected Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. 2.24 Defaulting Lenders. (a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law: (i) 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 Section 10.1 and in the definitions of Majority Revolving Lenders, Majority Term Lenders and Required Lenders. (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, pursuant to Section 8 or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 10.7), 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 the Issuing Lender or to the Swingline Lender hereunder; third, to be held as Cash Collateral for the funding obligations of such Defaulting Lender of any participation in any Letter of Credit; 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 to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement, and (y) be held as Cash Collateral for the future funding obligations of such Defaulting Lender of any participation in any future Letter of Credit; sixth, to the payment of any amounts owing to any L/C Lender, Issuing Lender or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any L/C Lender, Issuing Lender or Swingline Lender 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 has occurred and is continuing, 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; provided that if (A) such payment is a payment of the principal amount of any Loans or L/C Advances in respect of which such Defaulting Lender has not fully funded its appropriate share and (B) such Loans or L/C Advances were made at a time when the conditions set forth in Section 5.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Advances owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Advances owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Advances and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 2.24(a)(iv). 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 2.24(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. (iii) Certain Fees. (A) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.9(b) for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender). (B) Each Defaulting Lender shall be limited in its right to receive Letter of Credit Fees as provided in Section 3.3(d). (C) With respect to any Letter of Credit 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 or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Lender and the Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Lender’s or the Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee. (iv) Reallocation of Pro Rata Share to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 3.4 or in Swingline Loans pursuant to Section 2.7(c), the L/C Percentage of each Non-Defaulting Lender of any such Letter of Credit and the Revolving Percentage of each Non-Defaulting Lender of any such Swingline Loan, as the case may be, shall be computed without giving effect to the Revolving Commitment of such Defaulting Lender; provided that, (A) [reserved]; and


 
(B) the aggregate obligations of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that Non-Defaulting Lender minus (2) the aggregate outstanding amount of the Revolving Loans of that Lender plus the aggregate amount of that Lender’s L/C Percentage of then outstanding Letters of Credit. Subject to Section 10.21, 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, Repayment of Swingline Loans. 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, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize the Issuing Lender’s Fronting Exposure in accordance with the procedures set forth in Section 3.10. (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender and the Issuing Lender 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), such Lender will, to the extent applicable, purchase at par that portion of outstanding 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 and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their respective Revolving Percentages, L/C Percentages, and Term Percentages, as applicable (without giving effect to Section 2.24(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 such Lender was a Defaulting Lender; and 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 such Lender having been a Defaulting Lender. (c) New Swingline Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan, and (ii) the Issuing Lender 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 in respect of Letters of Credit after giving effect thereto. (d) Termination of Defaulting Lender. The Borrower may terminate the unused amount of the Revolving Commitment of any Revolving Lender that is a Defaulting Lender upon not less than ten Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.24(a)(ii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender may have against such Defaulting Lender. 2.25 Notes. If so requested by any Lender by written notice to the Borrower (with a copy to the Administrative Agent), the Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to


 
Section 10.6) (promptly after the Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Loans. 2.26 Incremental Facility. (a) At any time during the Revolving Commitment Period, the Borrower may request from time to time from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent, the Issuing Lender, the Swingline Lender and the Borrower (but subject to the conditions set forth in clause (b) below) that the Total Revolving Commitments be increased by an amount not to exceed the Available Revolving Increase Amount (each such increase, an “Increase”); provided that the Borrower may not request an Increase on more than three occasions during the Revolving Commitment Period. No Lender shall be obligated to increase its Revolving Commitments in connection with a proposed Increase. The Administrative Agent shall invite each Lender to provide a portion of the Increase ratably in accordance with its Revolving Percentage of each requested Increase (it being agreed that no Lender shall be obligated to provide an Increase and that any Lender may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or more than its Revolving Percentage of such requested Increase if other Lenders have elected not to participate in any applicable requested Increase in accordance with their Revolving Percentage) and to the extent, five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the full amount of such Increase, then the Administrative Agent may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Increase. Any Increase shall be in an amount of at least $10,000,000 (or, if the Available Revolving Increase Amount is less than $10,000,000, such remaining Available Revolving Increase Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolving Commitments exceed the Available Revolving Increase Amount during the term of the Agreement. (b) Each of the following shall be conditions precedent to any Increase of the Revolving Commitments in connection therewith: (i) any Increase shall be on the same terms (including the interest rate, and maturity date), as applicable, as, and pursuant to documentation applicable to, the Revolving Facility then in effect; provided that any such Increase may provide for terms (including interest rate) more favorable to such Increase lenders, if any existing Revolving Loans and Revolving Commitments at the time of such Increase are also provided the benefit of such more favorable terms (and the consent of any existing Revolving Lender shall not be required to implement such terms); provided, further, that any upfront fees shall be agreed between the Borrower and the lenders providing such Increase; (ii) the Borrower shall have delivered a written request for such Increase at least fifteen (15) Business Days prior to the requested establishment of such Increase (or such later date as may be reasonably approved by the Administrative Agent), which request shall set forth the amount and proposed terms of the Increase; (iii) each lender agreeing to such Increase, the Borrower and the Administrative Agent shall have signed an Increase Joinder (any Increase Joinder may, with the consent of the Administrative Agent, the Borrower and the lenders agreeing to such Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.26 (including the preceding clause (i)) and the Borrower shall have executed any Notes requested by any Lender in connection with the making of the Increase. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Increase


 
Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to establish such Increase; (iv) immediately after giving pro forma effect to such Increase and the use of proceeds thereof, each of the conditions precedent in Section 5.2(a) are satisfied; (v) immediately after giving pro forma effect to such Increase and the use of proceeds thereof (and assuming that such Increase was fully drawn), (A) no Default or Event of Default shall have occurred and be continuing at the time of such Increase and (B) the Borrower shall be in compliance with the financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended month and quarter for which financial statements are internally available to the Loan Parties prior to such Increase, and the Borrower shall have delivered to the Administrative Agent (which shall promptly provide to the Lenders) a Compliance Certificate evidencing compliance with the requirements of this clause (v); (vi) in connection with such Increase, the Borrower shall pay to the Administrative Agent, for the benefit of the Administrative Agent or the Increase lenders, as applicable, all fees that the Borrower has agreed to pay in connection with such Increase (including pursuant to the Fee Letter); (vii) upon each Increase in accordance with this Section 2.26, all outstanding Loans, participations hereunder in Letters of Credit and participations hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent in consultation with the Borrower; and (viii) the Borrower shall have delivered any additional documentation reasonably requested by the Administrative Agent or the Lenders providing such Increase, including a harvest analysis reasonably acceptable to the Administrative Agent demonstrating sufficient value of Collateral relative to Increase amount. (c) Upon the effectiveness of any Increase, (i) all references in this Agreement and any other Loan Document to the Revolving Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.26 and any amendments effected through the Increase Joinder and (ii) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.26. (d) The Revolving Loans and Revolving Commitments established pursuant to this Section 2.26 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Revolving Commitments.


 
SECTION 3 LETTERS OF CREDIT 3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender agrees to issue letters of credit (“Letters of Credit”) for the account of the Borrower on any Business Day during the Letter of Credit Availability Period in such form as may reasonably be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, the L/C Exposure would exceed either the Total L/C Commitments or the Available Revolving Commitment at such time. Unless otherwise agreed to by the Administrative Agent in its sole discretion, each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the Letter of Credit Maturity Date, provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above). (b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if: (i) such issuance would conflict with, or cause the Issuing Lender or any L/C Lender to exceed any limits imposed by, any applicable Requirement of Law; (ii) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing, amending or reinstating such Letter of Credit, or any law, rule or regulation applicable to the Issuing Lender or any request, guideline or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance, amendment, renewal or reinstatement of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated) not in effect on the Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Issuing Lender in good faith deems material to it; (iii) the Issuing Lender has received written notice from any Lender, the Administrative Agent or the Borrower, at least one (1) Business Day prior to the requested date of issuance, amendment, renewal or reinstatement of such Letter of Credit, that one or more of the applicable conditions contained in Section 5.2 shall not then be satisfied; (iv) any requested Letter of Credit is not in form and substance acceptable to the Issuing Lender, or the issuance, amendment or renewal of a Letter of Credit shall violate any applicable laws or regulations or any applicable policies of the Issuing Lender; (v) such Letter of Credit contains any provisions providing for automatic reinstatement of the stated amount after any drawing thereunder; (vi) except as otherwise agreed by the Administrative Agent and the Issuing Lender, such Letter of Credit is in an initial face amount less than $500,000; or


 
(vii) any Lender is at that time a Defaulting Lender, unless the Issuing Lender has entered into arrangements, including the delivery of Cash Collateral pursuant to Section 3.10, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Defaulting Lender to eliminate the Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.24(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Exposure as to which the Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion. 3.2 Procedure for Issuance of Letters of Credit. The Borrower may from time to time request that the Issuing Lender issue a Letter of Credit for the account of the Borrower by delivering to the Issuing Lender at its address for notices specified herein an Application therefor, completed to the satisfaction of the Issuing Lender, and such other certificates, documents and other papers and information as the Issuing Lender may request. Upon receipt of any Application, the Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall the Issuing Lender be required to issue any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower promptly following the issuance thereof. The Issuing Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof). 3.3 Fees and Other Charges. (a) The Borrower agrees to pay, with respect to each outstanding Letter of Credit issued for the account of (or at the request of) the Borrower, (i) a fronting fee of 0.125% per annum on the daily amount available to be drawn under each such Letter of Credit to the Issuing Lender for its own account (a “Letter of Credit Fronting Fee”), (ii) a letter of credit fee equal to the Applicable Margin relating to Revolving Loans that are SOFR Loans multiplied by the daily amount available to be drawn under each such Letter of Credit on the drawable amount of such Letter of Credit to the Administrative Agent for the ratable account of the L/C Lenders (determined in accordance with their respective L/C Percentages) (a “Letter of Credit Fee”), in each case payable quarterly in arrears on the last day of March, June, September and December of each year and on the Letter of Credit Maturity Date (each, an “L/C Fee Payment Date”) after the issuance date of such Letter of Credit, and (iii) the Issuing Lender’s standard and reasonable fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit issued for the account of (or at the request of) the Borrower or processing of drawings thereunder (the fees in this clause (iii), collectively, the “Issuing Lender Fees”). All Letter of Credit Fronting Fees and Letter of Credit Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. (b) In addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing Lender for such normal and customary costs and expenses as are incurred or charged by the Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit. (c) The Borrower shall furnish to the Issuing Lender and the Administrative Agent such other documents and information pertaining to any requested Letter of Credit issuance, amendment or renewal, including any L/C-Related Documents, as the Issuing Lender or the


 
Administrative Agent may require. This Agreement shall control in the event of any conflict with any L/C-Related Document (other than any Letter of Credit). (d) Any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the Issuing Lender pursuant to Section 3.10 shall be payable, to the maximum extent permitted by applicable law, to the other L/C Lenders in accordance with the upward adjustments in their respective L/C Percentages allocable to such Letter of Credit pursuant to Section 2.24(a)(iv), with the balance of such fee, if any, payable to the Issuing Lender for its own account. (e) All fees payable under this Section 3.3 shall be fully earned on the date paid and nonrefundable. 3.4 L/C Participations; Existing Letters of Credit. (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Lender, and, to induce the Issuing Lender to issue Letters of Credit, each L/C Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth below, for such L/C Lender’s own account and risk an undivided interest equal to such L/C Lender’s L/C Percentage in the Issuing Lender’s obligations and rights under and in respect of each Letter of Credit and the amount of each draft paid by the Issuing Lender thereunder. Each L/C Lender agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower pursuant to Section 3.5(a), such L/C Lender shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for notices specified herein an amount equal to such L/C Lender’s L/C Percentage of the amount of such draft, or any part thereof, that is not so reimbursed. Each L/C Lender’s obligation to pay such amount shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C Lender may have against the Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 5.2, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other L/C Lender, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. (b) On and after the Closing Date, the Existing Letters of Credit shall be deemed for all purposes, including for purposes of the fees to be collected pursuant to Sections 3.3(a) and (b), reimbursement of costs and expenses to the extent provided herein and for purposes of being secured by the Collateral, a Letter of Credit outstanding under this Agreement and entitled to the benefits of this Agreement and the other Loan Documents, and shall be governed by the applications and agreements pertaining thereto and by this Agreement (which shall control in the event of a conflict). 3.5 Reimbursement. (a) If the Issuing Lender shall make any L/C Disbursement in respect of a Letter of Credit, the Issuing Lender shall notify the Borrower and the Administrative Agent thereof and the Borrower shall pay or cause to be paid to the Issuing Lender an amount equal to the entire amount of such L/C Disbursement not later than the immediately following Business Day. Each such payment shall be made to the Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds; provided that the Borrower may, subject to the satisfaction of the conditions to borrowing set forth herein, request in accordance with Section 2.5 or Section 2.7(a) that such payment be financed with a Revolving Loan or a Swingline Loan, as applicable, in an equivalent amount and, to the


 
extent so financed, the Borrower’s obligations to make such payment shall be discharged and replaced by the resulting Revolving Loan or Swingline Loan. (b) If the Issuing Lender shall not have received from the Borrower the payment that it is required to make pursuant to Section 3.5(a) with respect to a Letter of Credit within the time specified in such Section, the Issuing Lender will promptly notify the Administrative Agent of the L/C Disbursement and the Administrative Agent will promptly notify each L/C Lender of such L/C Disbursement and its L/C Percentage thereof, and each L/C Lender shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for notices specified herein an amount equal to such L/C Lender’s L/C Percentage of such L/C Disbursement (and the Administrative Agent may apply Cash Collateral provided for this purpose); upon such payment pursuant to this paragraph to reimburse the Issuing Lender for any L/C Disbursement, the Borrower shall be required to reimburse the L/C Lenders for such payments (including interest accrued thereon from the date of such payment until the date of such reimbursement at the rate applicable to Revolving Loans that are ABR Loans plus 2% per annum) on demand; provided that if at the time of and after giving effect to such payment by the L/C Lenders, the conditions to borrowings and Revolving Loan Conversions set forth in Section 5.2 are satisfied, the Borrower may, by written notice to the Administrative Agent certifying that such conditions are satisfied and that all interest owing under this paragraph has been paid, request that such payments by the L/C Lenders be converted into Revolving Loans (a “Revolving Loan Conversion”), in which case, if such conditions are in fact satisfied, the L/C Lenders shall be deemed to have extended, and the Borrower shall be deemed to have accepted, a Revolving Loan in the aggregate principal amount of such payment without further action on the part of any party, and the Total L/C Commitments shall be permanently reduced by such amount; any amount so paid pursuant to this paragraph shall, on and after the payment date thereof, be deemed to be Revolving Loans for all purposes hereunder; provided that the Issuing Lender, at its option, may effectuate a Revolving Loan Conversion regardless of whether the conditions to borrowings and Revolving Loan Conversions set forth in Section 5.2 are satisfied. 3.6 Obligations Absolute. The Borrower’s obligations under this Section 3 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against the Issuing Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with the Issuing Lender that the Issuing Lender shall not be responsible for, and the Borrower’s obligations hereunder shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee. The Issuing Lender shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Issuing Lender. The Borrower agrees that any action taken or omitted by the Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct, shall be binding on the Borrower and shall not result in any liability of the Issuing Lender to the Borrower. In addition to amounts payable as elsewhere provided in the Agreement, the Borrower hereby agrees to pay and to protect, indemnify, and save Issuing Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that the Issuing Lender may incur or be subject to as a consequence, direct or indirect, of (a) the issuance of any Letter of Credit, or (b) the failure of Issuing Lender or of any L/C Lender to honor a demand for payment under any Letter of Credit as a result of any act or omission, whether rightful or


 
wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of Issuing Lender or such L/C Lender (as finally determined by a court of competent jurisdiction). 3.7 Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the Issuing Lender shall promptly notify the Borrower and the Administrative Agent of the date and amount thereof. The responsibility of the Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit. 3.8 Applications. To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply. 3.9 Interim Interest. If the Issuing Lender shall make any L/C Disbursement in respect of a Letter of Credit, then, unless either the Borrower shall have reimbursed such L/C Disbursement in full within the time period specified in Section 3.5(a) or the L/C Lenders shall have reimbursed such L/C Disbursement in full on such date as provided in Section 3.5(b), in each case the unpaid amount thereof shall bear interest for the account of the Issuing Lender, for each day from and including the date of such L/C Disbursement to but excluding the date of payment by the Borrower, at the rate per annum that would apply to such amount if such amount were a Revolving Loan that is an ABR Loan; provided that the provisions of Section 2.15(c) shall be applicable to any such amounts not paid when due. 3.10 Cash Collateral. (a) Certain Credit Support Events. Upon the request of the Administrative Agent or the Issuing Lender (i) if the Issuing Lender has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Advance by all the L/C Lenders that is not reimbursed by the Borrower or converted into a Revolving Loan or Swingline Loan pursuant to Section 3.5(b), or (ii) if, as of the Letter of Credit Maturity Date, any L/C Exposure for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then effective L/C Exposure in an amount equal to 105% of such L/C Exposure. At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the request of the Administrative Agent or the Issuing Lender (with a copy to the Administrative Agent), the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover 105% of the Fronting Exposure relating to the Letters of Credit (after giving effect to Section 2.24(a)(iv) and any Cash Collateral provided by such Defaulting Lender). (b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts with the Administrative Agent. The Borrower, and to the extent provided by any Lender or Defaulting Lender, such Lender or Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lender and the L/C Lenders, and agrees to maintain, a first priority security interest and Lien in all such Cash Collateral and in all proceeds thereof, as security for the Obligations to which such Cash Collateral may be applied pursuant to Section 3.10(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or any Issuing Lender as herein provided, or that the total amount of such Cash Collateral is less than 105% of the applicable L/C Exposure, Fronting Exposure and other Obligations secured thereby, the Borrower or the relevant Lender


 
or Defaulting Lender, as applicable, will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by such Defaulting Lender). (c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 3.10, Section 2.24 or otherwise in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Exposure, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein. (d) Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure in respect of Letters of Credit or other Obligations shall no longer be required to be held as Cash Collateral pursuant to this Section 3.10 following (i) the elimination of the applicable Fronting Exposure and other Obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender), or (ii) a determination by the Administrative Agent and the Issuing Lender that there exists excess Cash Collateral; provided, however, (A) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of an Event of Default, and (B) that, subject to Section 2.24, the Person providing such Cash Collateral and the Issuing Lender may agree that such Cash Collateral shall not be released but instead shall be held to support future anticipated Fronting Exposure or other obligations, and provided further, that to the extent that such Cash Collateral was provided by the Borrower or any other Loan Party, such Cash Collateral shall remain subject to any security interest and Lien granted pursuant to the Loan Documents including any applicable Cash Management Agreement. 3.11 Additional Issuing Lenders. The Borrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld) and such Lender, designate one or more additional Lenders to act as an issuing bank under the terms of this Agreement. Any Lender designated as an issuing bank pursuant to this paragraph shall be deemed to be an “Issuing Lender” (in addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Lender and such Lender. 3.12 Resignation of the Issuing Lender. The Issuing Lender may resign at any time by giving at least 30 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower. Subject to the next succeeding paragraph, upon the acceptance of any appointment as the Issuing Lender hereunder by a Lender that shall agree to serve as successor Issuing Lender, such successor shall succeed to and become vested with all the interests, rights and obligations of the retiring Issuing Lender and the retiring Issuing Lender shall be discharged from its obligations to issue additional Letters of Credit hereunder without affecting its rights and obligations with respect to Letters of Credit previously issued by it. At the time such resignation shall become effective, the Borrower shall pay all accrued and unpaid fees pursuant to Section 3.3. The acceptance of any appointment as the Issuing Lender hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor, in a form satisfactory to the Borrower and the Administrative Agent, and, from and after the effective date of such agreement, (i) such successor Lender shall have all the rights and obligations of the previous Issuing Lender under this Agreement and the other Loan Documents and (ii) references herein and in the other Loan Documents to the term “Issuing Lender” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require. After the resignation of the Issuing Lender hereunder, the retiring Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Lender under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such


 
resignation, but shall not be required to issue additional Letters of Credit or to extend, renew or increase any existing Letter of Credit. 3.13 Applicability of ISP. Unless otherwise expressly agreed by the Issuing Lender and the Borrower when a Letter of Credit is issued and subject to applicable laws, the Letters of Credit shall be governed by and subject to with respect to standby Letters of Credit, the rules of the ISP. SECTION 4 REPRESENTATIONS AND WARRANTIES To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans and issue the Letters of Credit, the Borrower hereby represents and warrants to the Administrative Agent and each Lender, as to itself and each other Group Member, that: 4.1 Financial Condition. (a) The Pro Forma Financial Statements have been prepared giving effect (as if such events had occurred on such date) to (i) [reserved], (ii) the Loans to be made on the Closing Date and the use of proceeds thereof, and (iii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Financial Statements have been prepared based on the best information available to the Borrower as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated financial position of the Group Members assuming that the events specified in the preceding sentence had actually occurred at such date. (b) The audited balance sheet of the Borrower as of December 31, 2020, and the related statement of income and of cash flows for the fiscal year ended on such date, reported on by and accompanied by an unqualified report from Ernst & Young, LLP, present fairly in all material respects the financial condition of the Borrower as at such date, and the results of its operations and its cash flows for the fiscal year then ended. The audited balance sheet of the Borrower as at December 31, 2021, and the related audited consolidated statements of income and cash flows for the fiscal year ended on such date, present fairly in all material respects the financial condition of the Borrower as at such date, and the results of its operations and its cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). The Borrower does not have, as of the Closing Date, any material Guarantee Obligations, contingent liabilities and liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent financial statements referred to in this paragraph. During the period from December 31, 2021 to and including the date hereof, there has been no Disposition by the Borrower of any material part of its business or property. 4.2 No Change. Since December 31, 2021, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect. 4.3 Existence; Compliance with Law. Each Group Member (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where the failure to be so qualified or in good standing could reasonably be expected to have a Material Adverse Effect and (d) is


 
in material compliance with all Requirements of Law except in such instances in which (i) such Requirement of Law is being contested in good faith by appropriate proceedings diligently conducted and the prosecution of such contest would not reasonably be expected to result in a Material Adverse Effect, or (ii) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. 4.4 Power, Authorization; Enforceable Obligations. Each Loan Party has the power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder. Each Loan Party has taken all necessary organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement. No Governmental Approval or consent or authorization of, filing with, notice to or other act by or in respect of, any other Person is required in connection with the extensions of credit hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan Documents, except (i) Governmental Approvals, consents, authorizations, filings and notices described on Schedule 4.4, which Governmental Approvals, consents, authorizations, filings and notices have been obtained or made and are in full force and effect, and (ii) the filings referred to in Section 4.19. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). 4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents, the issuance of Letters of Credit, the extensions of credit hereunder and the use of the proceeds thereof will not violate any Requirement of Law (except as set forth on Schedule 4.5) or any material Contractual Obligation of any Group Member and will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such material Contractual Obligation (other than the Liens created by the Security Documents). No Group Member has violated any Requirement of Law or violated or failed to comply with any Contractual Obligation applicable to the Group Members that could reasonably be expected to have a Material Adverse Effect. The absence of obtaining the Governmental Approvals described on Schedule 4.5 and the violations of Requirements of Law referenced on Schedule 4.5 shall not have an adverse effect on any rights of the Lenders or the Administrative Agent pursuant to the Loan Documents. 4.6 Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of any Responsible Officer of any Group Member, threatened in writing, by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect. 4.7 No Default. No Group Member is in default under or with respect to any of its Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing, nor shall either result from the making of a requested credit extension. 4.8 Ownership of Property; Liens; Investments. Each Group Member has title in fee simple to, or a valid leasehold interest in, all of its real property, and good title to, or a valid leasehold


 
interest in, all of its other property, and none of such property is subject to any Lien except as permitted by Section 7.3. No Loan Party owns any Investment except as permitted by Section 7.8. Section 10 of the Collateral Information Certificate sets forth a complete and accurate list of all real property owned by each Loan Party as of the Closing Date, if any. The Collateral Information Certificate sets forth a complete and accurate list of all leases of real property under which any Loan Party is the lessee as of the Closing Date. 4.9 Intellectual Property. Each Group Member owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted. No claim has been asserted and is pending by any Person challenging or questioning any Group Member’s use of any Intellectual Property or the validity or effectiveness of any Group Member’s Intellectual Property, nor does any Group Member know of any valid basis for any such claim, unless such claim could not reasonably be expected to have a Material Adverse Effect. The use of Intellectual Property by each Group Member, and the conduct of such Group Member’s business, as currently conducted, does not infringe on or otherwise violate the rights of any Person, unless such infringement could not reasonably be expected to have a Material Adverse Effect, and there are no claims pending or, to the knowledge of any Responsible Officer of any Group Member, threatened in writing to such effect. 4.10 Taxes. Except as set forth on Schedule 4.10, each Group Member has filed or caused to be filed all Federal, state and other material tax returns that are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any taxes, charges or assessments the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Group Member); no tax Lien has been filed, and, to the knowledge of any Responsible Officer of any Group Member, no claim is being asserted, with respect to any such tax, fee or other charge. 4.11 Federal Regulations. The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of “buying’ or “carrying” “margin stock” (within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect) or extending credit for the purpose of purchasing or carrying margin stock. No part of the proceeds of any Loans, and no other extensions of credit hereunder, will be used for buying or carrying any such margin stock or for extending credit to others for the purpose of purchasing or carrying margin stock in violation of Regulations T, U or X of the Board. If any margin stock directly or indirectly constitutes Collateral securing the Obligations, if requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U. 4.12 Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of any Responsible Officer of any Group Member, threatened in writing; (b) hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member. 4.13 ERISA.


 
(a) [reserved]; (b) except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, the Borrower and its ERISA Affiliates are in compliance in all material respects with all applicable provisions and requirements of ERISA with respect to each Plan, and have performed all their obligations under each Plan; (c) except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur; (d) except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, the Borrower and each of its ERISA Affiliates have met all applicable requirements under the ERISA Funding Rules with respect to each Pension Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained; (e) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and neither the Borrower nor any of its ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below 60% as of the most recent valuation date; (f) except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, or except to the extent required under Section 4980B of the Code, or as described on Schedule 4.13, no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates; (g) [reserved]; (h) except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code; (i) all liabilities under each Plan are (i) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing the Plans, except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, (ii) insured with a reputable insurance company, except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, (iii) provided for or recognized in the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto or (iv) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto; (j) to the knowledge of any Responsible Officer of the Borrower and except as in the aggregate could not reasonably be expected to have a Material Adverse Effect, there are no circumstances which may give rise to a liability in relation to any Plan which is not funded, insured, provided for, recognized or estimated in the manner described in clause (g); and (k) based on the Borrower’s understanding that none of the Lenders constitute a “plan” within the meaning of Section 4975(e) of the Code and that none of the Loan proceeds will be “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29


 
C.F.R. §2510.3-101, (i) the Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Code; (ii) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101; (iii) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (iv) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans. 4.14 Investment Company Act; Other Regulations. No Loan Party is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended. Except as set forth on Schedule 4.5, no Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board) that limits its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. 4.15 Subsidiaries. Except as disclosed to the Administrative Agent by the Borrower in writing from time to time after the Closing Date, (a) Schedule 4.15 sets forth the name and jurisdiction of organization of each Subsidiary of the Borrower and, as to each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party, and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to any Capital Stock of any Group Member, except as may be created by the Loan Documents. 4.16 Use of Proceeds. The proceeds of the Term Loans shall be used to (i) refinance the existing Term Loans under the Existing Credit Agreement, (ii) finance Permitted Acquisitions and to pay related fees and expenses, and (iii) for working capital and general corporate purposes. All or a portion of the proceeds of the Revolving Loans and Swingline Loans shall be used for working capital and general corporate purposes. 4.17 Environmental Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) except as disclosed on Schedule 4.17, the facilities and properties owned, leased or operated by any Group Member (the “Properties”) do not contain, and have not previously contained, any Materials of Environmental Concern in amounts or concentrations or under circumstances that constitute or have constituted a violation of, or could give rise to liability under, any Environmental Law; (b) no Responsible Officer of any Group Member has received or is aware of any notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties or the business operated by any Group Member (the “Business”), nor does any Responsible Officer of any Group Member have knowledge or reason to believe that any such notice will be received or is being threatened; (c) no Group Member has transported or disposed of Materials of Environmental Concern from the Properties in violation of, or in a manner or to a location that could give rise to liability under, any Environmental Law, nor has any Group Member generated, treated, stored or disposed of Materials of Environmental Concern at, on or under any of the Properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Law; (d) no judicial proceeding or governmental or administrative action is pending or, to the knowledge of any Responsible Officer of any Group Member, threatened in writing, under any


 
Environmental Law to which any Group Member is or will be named as a party with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business; (e) there has been no release or threat of release of Materials of Environmental Concern at or from the Properties arising from or related to the operations of any Group Member or otherwise in connection with the Business, in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws; (f) the Properties and all operations of the Group Members at the Properties are in compliance, and have in the last five years been in compliance, with all applicable Environmental Laws, and except as set forth on Schedule 4.17, to the knowledge of any Responsible Officer of the Borrower, there is no contamination at, under or about the Properties or violation of any Environmental Law with respect to the Properties or the Business; and (g) no Group Member has assumed any liability of any other Person under Environmental Laws. 4.18 Accuracy of Information, etc. No statement or information contained in this Agreement, any other Loan Document or any other document, certificate or statement furnished by or on behalf of any Loan Party to the Administrative Agent or the Lenders, or any of them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, when taken as a whole, contained as of the date such statement, information, document or certificate was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not misleading. The projections and pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such projections and financial information as they relate to future events are not to be viewed as fact and that actual results during the period or periods covered by such projections and financial information may differ from the projected results set forth therein by a material amount. There is no fact known to any Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been expressly disclosed herein, in the other Loan Documents or in any other documents, certificates and statements furnished to the Administrative Agent and the Lenders for use in connection with the transactions contemplated hereby and by the other Loan Documents. 4.19 Security Documents. (a) The Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the Pledged Stock described in the Guarantee and Collateral Agreement that are securities represented by stock certificates or otherwise constituting certificated securities within the meaning of Section 8-102(a)(15) of the UCC or the corresponding code or statute of any other applicable jurisdiction (“Certificated Securities”), when certificates representing such Pledged Stock are delivered to the Administrative Agent, and in the case of the other Collateral constituting personal property described in the Guarantee and Collateral Agreement, when financing statements and other filings specified on Schedule 4.19(a) in appropriate form are filed in the offices specified on Schedule 4.19(a), the Administrative 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 the proceeds thereof, as security for the Obligations, in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock,


 
Liens permitted by Section 7.3). As of the Closing Date, none of the Capital Stock of any Group Members that is a limited liability company or partnership has any Capital Stock that is a Certificated Security. (b) Each of the Mortgages delivered after the Closing Date will be, upon execution, effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties described therein and proceeds thereof, and when the Mortgages are filed in the offices for the applicable jurisdictions in which the Mortgaged Properties are located, each such Mortgage shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the Obligations (as defined in the relevant Mortgage), in each case prior and superior in right to any other Person. 4.20 Solvency; Voidable Transaction. Each Loan Party is, and after giving effect to the incurrence of all Indebtedness, Obligations and obligations being incurred in connection herewith and therewith, will be and will continue to be, Solvent. No transfer of property is being made by any Loan Party and no obligation is being incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party 4.21 [Reserved]. 4.22 Designated Senior Indebtedness. The Loan Documents and all of the Obligations have been deemed “Designated Senior Indebtedness” or a similar concept thereto, if applicable, for purposes of any other Indebtedness of the Loan Parties. 4.23 [Reserved]. 4.24 Insurance. All insurance maintained by the Loan Parties is in full force and effect, all premiums have been duly paid, no Loan Party has received notice of violation or cancellation thereof, and there exists no default under any requirement of such insurance. Each Loan Party maintains insurance with financially sound and reputable insurance companies on all its property in at least such amounts and against at least such risks (but including in any event public liability, product liability, and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business. 4.25 No Casualty. No Loan Party has received any notice of, nor does any Responsible Officer of any Loan Party have any knowledge of, the occurrence or pendency or contemplation of any Casualty Event affecting all or any material portion of its property.


 
4.26 Contracts. All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing Recurring Revenue are and shall be true and correct and all such invoices, instruments and other documents, and all of the books and records are genuine and in all respects what they purport to be. All sales and other transactions underlying or giving rise to each Account shall comply in all material respects with all applicable Requirements of Law. To the knowledge of a Responsible Officer of the Borrower, all signatures and endorsements on all documents, instruments, and agreements relating to all Accounts are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. The applicable Loan Party is the owner of and has legal right to sell, transfer, assign and encumber each contact generating Recurring Revenue, and there are no offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount that are not deducted in the Borrowing Base. 4.27 [Reserved]. 4.28 OFAC. No Group Member, nor, to the knowledge of any such Group Member, any director, officer, employee, agent, affiliate or representative thereof, is an individual or an entity that is, or is owned or controlled by an individual or entity that is (a) currently the subject of any Sanctions, or (b) located, organized or resident in a Designated Jurisdiction. 4.29 Anti-Corruption Laws. Each Group Member has conducted its businesses in compliance with applicable anti-corruption laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. SECTION 5 CONDITIONS PRECEDENT 5.1 Conditions to Initial Extension of Credit. The effectiveness of this Agreement and the obligation of each Lender to make its initial extension of credit hereunder shall be subject to the satisfaction or waiver, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent: (a) Loan Documents. The Administrative Agent shall have received each of the following, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent: (i) this Agreement, executed and delivered by the Administrative Agent, the Borrower and each Lender listed on Schedule 1.1A; (ii) the Collateral Information Certificate, executed by a Responsible Officer; (iii) if required by any Term Lender, a Term Loan Note executed by the Borrower in favor of such Term Lender; (iv) if required by any Revolving Lender, a Revolving Loan Note executed by the Borrower in favor of such Revolving Lender; (v) if required by the Swingline Lender, the Swingline Loan Note executed by the Borrower in favor of such Swingline Lender;


 
(vi) the Guarantee and Collateral Agreement, executed and delivered by each Grantor named therein; (vii) each Intellectual Property Security Agreement, executed by the applicable Grantor related thereto; (viii) each other Security Document, executed and delivered by the applicable Loan Party party thereto; (ix) the Flow of Funds Agreement, executed by the Borrower. (b) [Reserved]. (c) Pro Forma Financial Statements; Financial Statements; Projections. The Administrative Agent shall have received (i) the Pro Forma Financial Statements, (ii) the financial statements of the Group Members referenced in Section 4.1(b). (d) Approvals. All Governmental Approvals and consents and approvals of, or notices to, any other Person (including the holders of any Capital Stock issued by any Loan Party) required in connection with the execution and performance of the Loan Documents, the continuing operations of the Group Members, the operations of the Group Members as expected to result from the consummation of the transactions contemplated hereby, shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that could reasonably be expected to restrain, prevent or otherwise impose burdensome conditions on the financing contemplated hereby. The absence of obtaining the Governmental Approvals described on Schedule 4.5 shall not have an adverse effect on any rights of the Lenders, the Administrative Agent pursuant to the Loan Documents. (e) Secretary’s or Managing Member’s Certificates; Certified Operating Documents; Good Standing Certificates. The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date and executed by the Secretary, Managing Member or equivalent officer of such Loan Party, substantially in the form of Exhibit C, with appropriate insertions and attachments, including (A) the Operating Documents of such Loan Party certified, in the case of formation documents, as of a recent date by the secretary of state or similar official of the relevant jurisdiction of organization of such Loan Party, (B) the relevant board resolutions or written consents of such Loan Party adopted by such Loan Party for the purposes of authorizing such Loan Party to enter into and perform the Loan Documents to which such Loan Party is party and (C) the names, titles, incumbency and signature specimens of those representatives of such Loan Party who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Loan Party, (ii) a long form good standing certificate for each Loan Party from its respective jurisdiction of organization, and (iii) a certificate of foreign qualification from each jurisdiction where the failure of any Loan Party to be qualified could reasonably be expected to have a Material Adverse Effect. (f) [Reserved]. (g) Patriot Act, etc. The Administrative Agent and each Lender shall have received, prior to the Closing Date, all documentation and other information requested to comply with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party.


 
(h) Due Diligence Investigation. The Administrative Agent shall have completed a due diligence investigation of the Group Members in scope, and with results, satisfactory to the Administrative Agent and shall have been given such access to the management, records, books of account, contracts and properties of the Group Members and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as it shall have requested. (i) Reports. The Administrative Agent shall have received, in form and substance satisfactory to it, all asset appraisals, field audits, and such other reports and certifications, as it has reasonably requested. (j) [Reserved]. (k) Collateral Matters. (i) Lien Searches. The Administrative Agent shall have received the results of recent lien, judgment and litigation searches reasonably required by the Administrative Agent, and such searches shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3, or Liens to be discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent. (ii) Pledged Stock; Stock Powers; Pledged Notes. Subject to the provisions of Section 5.3, the Administrative Agent shall have received (A) the certificates representing the shares of Capital Stock pledged to the Administrative Agent (for the benefit of the Secured Parties) pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, and (B) each promissory note (if any) pledged to the Administrative Agent (for the benefit of the Secured Parties) pursuant to the Guarantee and Collateral Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof. (iii) Filings, Registrations, Recordings, Agreements, Etc. Subject to the provisions of Section 5.3, each document (including any UCC financing statements, Intellectual Property Security Agreements, Deposit Account Control Agreements, Securities Account Control Agreements, and landlord access agreements and/or bailee waivers) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create in favor of the Administrative Agent (for the benefit of the Secured Parties), a perfected Lien on the Collateral described therein, prior and superior in right and priority to any Lien in the Collateral held by any other Person (other than with respect to Liens expressly permitted by Section 7.3), shall have been executed and delivered to the Administrative Agent or, as applicable, be in proper form for filing, registration or recordation. (iv) Collateral Audit. The Administrative Agent shall have completed an initial collateral audit on or prior to the Closing Date. (l) Insurance. The Administrative Agent shall have received insurance certificates and endorsements satisfying the requirements of Section 6.6 hereof and Section 5.2(b) of the Guarantee and Collateral Agreement, together with evidence reasonably satisfactory to the Administrative Agent that the third-party liability insurance policies of each Loan Party have been endorsed for the purpose of naming the Administrative Agent (for the ratable benefit of the Secured Parties) as an “additional insured”, with respect to such third-party liability insurance policies, in form and substance satisfactory to the Administrative Agent.


 
(m) Fees. The Lenders and the Administrative Agent shall have received all fees required to be paid on or prior to the Closing Date (including pursuant to the Fee Letter), and all reasonable and documented fees and expenses for which invoices have been presented (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) for payment on or before the Closing Date. (n) Legal Opinions. The Administrative Agent shall have received the executed legal opinion of Hunton Andrews Kurth LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent. Such legal opinions shall cover such matters incident to the transactions contemplated by this Agreement and the other Loan Documents as the Administrative Agent may reasonably require. (o) Borrowing Notices. The Administrative Agent shall have received, a completed Notice of Borrowing executed by the Borrower and otherwise complying with the requirements of Section 2.2. (p) Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer. (q) No Material Adverse Effect. There shall not have occurred since December 31, 2021 any event or condition that has had or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. (r) No Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of any Responsible Officer of any Group Member, threatened in writing, that could reasonably be expected to have a Material Adverse Effect. (s) Notice of Conversion. The Administrative Agent shall have received, a completed Notice of Conversion executed by the Borrower and otherwise complying with the requirements of Section 2.13. (t) Harvest Analysis. The Administrative Agent shall have received a harvest analysis reasonably acceptable to the Administrative Agent. For purposes of determining compliance with the conditions specified in this Section 5.1, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter either sent (or made available) by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender, 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 such Lender’s objection thereto and either such objection shall not have been withdrawn by notice to the Administrative Agent to that effect on or prior to the Closing Date or, if any extension of credit on the Closing Date has been requested, such Lender shall not have made available to the Administrative Agent on or prior to the Closing Date such Lender’s Revolving Percentage or Term Percentage, as the case may be, of such requested extension of credit.


 
5.2 Conditions to Each Extension of Credit. The agreement of each Lender to make any extension of credit requested to be made by it on any date (including its initial extension of credit) is subject to the satisfaction of the following conditions precedent: (a) Representations and Warranties. Each of the representations and warranties made by each Loan Party in or pursuant to any Loan Document (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such date as if made on and as of such date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects (or all respects, as applicable) as of such earlier date. (b) Borrowing Base Certificate. The Borrower shall have delivered to the Administrative Agent a duly executed Borrowing Base Certificate reflecting information concerning Recurring Revenue as of a date not more than three days prior to the requested Borrowing Date. (c) Availability. With respect to any requests for any Revolving Extensions of Credit, after giving effect to such Revolving Extension of Credit, the availability and borrowing limitations specified in Section 2.4 shall be complied with. (d) Notices of Borrowing. The Administrative Agent shall have received a Notice of Borrowing in connection with any such request for extension of credit which complies with the requirements hereof. (e) No Default. No Default or Event of Default shall have occurred and be continuing as of or on such date or after giving effect to the extensions of credit requested to be made on such date. Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder, each Revolving Loan Conversion and each conversion of a Term Loan shall constitute a representation and warranty by the Borrower as of the date of such extension of credit, Revolving Loan Conversion or conversion of a Term Loan, as applicable, that the conditions contained in this Section 5.2 have been satisfied. 5.3 Post-Closing Conditions Subsequent. The Borrower shall satisfy each of the conditions subsequent to the Closing Date specified in this Section 5.3 to the satisfaction of the Administrative Agent, in each case, by no later than the date specified for such condition below (or such later date as the Administrative Agent shall agree in its sole discretion): (a) The Borrower shall cause to be delivered to the Administrative Agent by no later than the date occurring 90 days after the Closing Date, Control Agreements for all of the Loan Parties deposit, operating and securities accounts (other than any Excluded Accounts (as defined in the Guarantee and Collateral Agreement)), in form and substance reasonably satisfactory to the Administrative Agent; (b) Within 45 days following the Closing Date, the Administrative Agent shall have received copies of relevant insurance certificates and endorsements required pursuant to Section 5.2(b) of the Guarantee and Collateral Agreement; (c) The Borrower shall cause to be delivered to the Administrative Agent by no later than the date occurring 10 days after the Closing Date, the certificates representing the shares of Capital


 
Stock pledged to the Administrative Agent (for the benefit of the Secured Parties) pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof; (d) Within 30 days following the Closing Date, the Administrative Agent shall have received evidence that UCC-1 #2019-0798236 shall have been terminated; (e) Within 30 days following the Closing Date, the Administrative Agent shall have received evidence that UCC-1 #2019-8762911 shall have been terminated; and (f) Within 30 days following the Closing Date, the Administrative Agent shall have received evidence that UCC-1 #OH00251877000 shall have been terminated. SECTION 6 AFFIRMATIVE COVENANTS The Borrower hereby agrees that, at all times prior to the Discharge of Obligations, the Borrower shall, and, where applicable, shall cause each of its Subsidiaries to: 6.1 Financial Statements. Furnish to the Administrative Agent, with sufficient copies for distribution to each Lender: (a) as soon as available, but in any event within 120 days after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of income and of cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by an independent certified public accountants of nationally recognized standing and reasonably acceptable to the Administrative Agent; (b) as soon as available, but in any event the earlier of (i) the date of filing on which Borrower files such documents with the SEC and such documents are publicly available on the SEC’s EDGAR filing system or any successor thereto or (ii) within 60 days after the end of each quarterly period of each fiscal year of the Borrower, the unaudited consolidated and consolidating balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such fiscal quarter and the related unaudited consolidated and consolidating statements of income and of cash flows for such fiscal quarter and the portion of the fiscal year through the end of such fiscal quarter, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments) (provided that no such certification shall be required in the event such financial statements have been filed with the SEC); All such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods. Additionally, documents required to be delivered or furnished pursuant to this Section 6.1 or Section 6.2(e) below (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so, shall be deemed to have been delivered on the date on which the Borrower posts such documents, or provides a link thereto, either: (i) on the Borrower’s website; or (ii) when such documents are posted electronically on the Borrower’s behalf on an internet or intranet


 
website to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), if any; provided that the Borrower shall deliver copies of such documents to the Administrative Agent or any Lender upon its reasonable request to the Borrower to deliver such paper copies. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper 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 by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. 6.2 Certificates; Reports; Other Information. Furnish to the Administrative Agent, for distribution to each Lender (or, in the case of clause (k), to the relevant Lender): (a) [reserved]; (b) (i) concurrently with the delivery (or filing with the SEC as provided in Section 6.1) of any financial statements pursuant to Section 6.1 or for any other month within 30 days of such month, a certificate of a Responsible Officer stating that, to such Responsible Officer’s knowledge, each Loan Party during such period has observed or performed all of its covenants and other agreements, and satisfied every condition contained in this Agreement and the other Loan Documents to which it is a party to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) in the case of quarterly or annual financial statements or with respect to the monthly deliverables as outlined in clause (z) below, (x) a Compliance Certificate containing all information and calculations necessary for determining compliance by each Group Member with the provisions of this Agreement referred to therein as of the last day of the month, fiscal quarter or fiscal year of the Borrower, as the case may be, (y) to the extent not previously disclosed to the Administrative Agent, a description of any change in the jurisdiction of organization of any Loan Party and a list of any Intellectual Property issued to, applied for or acquired by any Loan Party since the date of the most recent report delivered pursuant to this clause (y) (or, in the case of the first such report so delivered, since the Closing Date), and (z) in the case of monthly financials statements, bank statements evidencing compliance with the Liquidity financial covenant; (c) as soon as available, and in any event no later than 60 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of each fiscal quarter of such fiscal year, the related consolidated statements of projected cash flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto), and, as soon as available, significant revisions, if any, of such budget and projections with respect to such fiscal year (collectively, the “Projections”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer stating that such Projections are based on reasonable estimates, information and assumptions and that such Responsible Officer has no reason to believe that such Projections are incorrect or misleading in any material respect; (d) promptly, and in any event within five (5) Business Days after receipt thereof by any Group Member, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Group Member (other than routine comment letters from the staff of the SEC relating to the Borrower’s filings with the SEC);


 
(e) within five days after the same are sent, copies of, or links to the filings made at the SEC’s Edgar site of, each annual report, proxy or financial statement or other material report that any Group Member sends to the holders of any class of its Indebtedness or public equity securities and, within five days after the same are filed, copies of, or links to the filings made at the SEC’s Edgar site of, all annual, regular, periodic and special reports and registration statements which the Group Member may file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and not otherwise required to be delivered to the Administrative Agent pursuant hereto; (f) upon request by the Administrative Agent, within five days after the same are sent or received, copies of all correspondence, reports, documents and other filings with any Governmental Authority regarding compliance with or maintenance of Governmental Approvals or Requirements of Law or that could reasonably be expected to have a Material Adverse Effect on any of the Governmental Approvals or otherwise on the operations of the Group Members; (g) concurrently with the delivery of the financial statements referred to in Section 6.1(a) and (b) a Borrowing Base Certificate accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion, including without limitation, details of Recurring Revenue including, without limitation, total Recurring Revenue, total customers, Churn Rate and the Retention Rate; (h) promptly, such additional financial and other information, including, without limitation, any certification or other evidence confirming Borrower’s compliance with the terms of this Agreement, as the Administrative Agent or any Lender may from time to time reasonably request. 6.3 Contracts. (a) Schedules and Documents Relating to Contracts. The Borrower’s failure to execute and deliver any required transaction reports, Borrowing Base Certificates and schedules of collections shall not affect or limit the Administrative Agent’s Lien and other rights in all of the Accounts (including for the avoidance of doubt any contracts generating Recurring Revenue), nor shall Lenders failure to advance or lend against a specific contract (to the extent permitted by this Agreement) limit the Administrative Agent’s Lien and other rights therein. If reasonably requested by the Administrative Agent, the Borrower shall furnish the Administrative Agent with copies of all contracts, orders, invoices, and other similar documents, and all shipping instructions, delivery receipts, bills of lading, and other evidence of delivery, for any goods the sale or disposition of which gave rise to such contracts. In addition, the Borrower shall deliver to the Administrative Agent, on its reasonable request, the originals of all instruments, chattel paper, security agreements, guarantees and other documents and property evidencing or securing any contracts, in the same form as received, with all necessary endorsements, and copies of all credit memos; (b) Disputes. Upon the knowledge of a Responsible Officer of the Borrower, the Borrower shall promptly notify the Administrative Agent of all disputes or claims, which allege or involve an amount in excess of $1,000,000, relating to contracts. The Borrower may forgive (completely or partially), compromise, or settle any contract for less than payment in full, or agree to do any of the foregoing at any time so long as (i) the Borrower does so in good faith, in a commercially reasonable manner, in the ordinary course of business and in arm’s-length transactions; (ii) no Default or Event of Default has occurred and is continuing at such time; and (iii) after taking into account all such discounts, settlements and forgiveness, the aggregate amount of aggregate Revolving Extensions of Credit then outstanding will not exceed the Available Revolving Commitment in effect at such time.


 
(c) Collection of Accounts. The Borrower shall have the right to collect all Accounts unless and until an Event of Default has occurred and is continuing. If an Event of Default has occurred and is continuing, the Borrower shall hold all payments on, and proceeds of, its Accounts in trust for the Administrative Agent, and, if requested by the Administrative Agent, the Borrower shall immediately deliver all such payments and proceeds to the Administrative Agent in their original form, duly endorsed, and the Administrative Agent may, in its good faith business judgment, require that all proceeds of such Accounts be deposited by the Borrower into one or more lockbox accounts, or such other “blocked accounts” as the Administrative Agent may specify. Any such amounts actually paid to or collected by the Administrative Agent pursuant to this Section 6.3(c) may be applied by the Administrative Agent, at any time during the existence of an Event of Default, to the Revolving Loans then outstanding in accordance with Section 2.18. To the extent that such remaining amount is not otherwise required to be applied to the Obligations pursuant to any other Section of this Agreement, then such remaining amount shall be returned by the Administrative Agent to the Borrower. (d) Returns. Upon the request of the Administrative Agent, the Borrower shall promptly provide the Administrative Agent with an Inventory return history. (e) Verification. The Administrative Agent may, after an Event of Default has occurred or is continuing, verify directly with the respective Account Debtors the validity, amount and other matters relating to the contracts, either in the name of a Borrower or the Administrative Agent or such other name as the Administrative Agent may choose; (f) No Liability. The Administrative Agent shall not be responsible or liable for any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to a contract, or for any error, act, omission, or delay of any kind occurring in the settlement, failure to settle, collection or failure to collect any Account, or for settling any Account in good faith for less than the full amount thereof, nor shall the Administrative Agent be deemed to be responsible for any of the Borrower’s obligations under any contract or agreement giving rise to an contract. Nothing herein shall, however, relieve the Administrative Agent from liability for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment. 6.4 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member. 6.5 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep in full force and effect its organizational existence and (ii) take all reasonable action to maintain or obtain all Governmental Approvals and all other rights, privileges and franchises necessary or desirable in the normal conduct of its business or necessary for the performance by such Person of its Obligations under any Loan Document, except, in each case, as otherwise permitted by Section 7.4 and except, in the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (b) comply with all Contractual Obligations (including with respect to leasehold interests of the Borrower) and Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect; and (c) comply with all Governmental Approvals, and any term, condition, rule, filing or fee obligation, or other requirement related thereto, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, the Borrower shall, and shall cause each of its ERISA Affiliates to: (1) maintain each Plan in compliance in all material respects with


 
the applicable provisions of ERISA, the Code or other Federal or state law; (2) cause each Qualified Plan to maintain its qualified status under Section 401(a) of the Code; (3) make all required contributions to any Plan; (4) not become a party to any Multiemployer Plan; (5) ensure that all liabilities under each Plan are either (x) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing such Plan; (y) insured with a reputable insurance company; or (z) provided for or recognized in the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto; and (6) ensure that the contributions or premium payments to or in respect of each Plan are and continue to be promptly paid at no less than the rates required under the rules of such Plan and in accordance with the most recent actuarial advice received in relation to such Plan and applicable law. 6.6 Maintenance of Property; Insurance. (a) Keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted and (b) maintain with financially sound and reputable insurance companies insurance on all its property in at least such amounts and against at least such risks (but including in any event public liability, product liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business. All such insurance shall (i) provide that no cancellation in coverage thereof shall be effective until at least 10 days after receipt by the Administrative Agent of written notice thereof and (ii) with respect to third party liability insurance, name the Administrative Agent as an additional insured party. 6.7 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities and (b) permit representatives and independent contractors of the Administrative Agent and any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and as often as may reasonably be desired and to discuss the business, operations, properties and financial and other condition of the Group Members with officers, directors and employees of the Group Members and with their independent certified public accountants. 6.8 Notices. Upon the knowledge of a Responsible Officer of any Group Member, give prompt written notice to the Administrative Agent of: (a) the occurrence of any Default or Event of Default; (b) any (i) default or event of default under any Contractual Obligation of any Group Member or (ii) litigation, investigation or proceeding that may exist at any time between any Group Member and any Governmental Authority, that in either case, if not cured or if adversely determined, as the case may be, could reasonably be expected to have a Material Adverse Effect; (c) any litigation or proceeding affecting any Group Member (i) in which the amount involved is $1,000,000 or more and not covered by insurance, (ii) in which injunctive or similar relief is sought against any Group Member and could reasonably be expected to have a Material Adverse Effect or (iii) which relates to any Loan Document; (d) (i) promptly after the Borrower has knowledge or becomes aware of the occurrence of any of the following ERISA Events affecting the Borrower or any ERISA Affiliate (but in no event more than ten days after such event), the occurrence of any of the following ERISA Events, and shall provide the Administrative Agent with a copy of any notice with respect to such event that may be required to be filed with a Governmental Authority and any notice delivered by a Governmental Authority to the Borrower or any ERISA Affiliate with respect to such event: (A) an ERISA Event,


 
(B) the adoption of any new Pension Plan by the Borrower or any ERISA Affiliate, (C) the adoption of any amendment to a Pension Plan, if such amendment will result in a material increase in benefits or unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), or (D) the commencement of contributions by the Borrower or any ERISA Affiliate to any Plan that is subject to Title IV of ERISA or Section 412 of the Code; and (ii) (A) promptly after the giving, sending or filing thereof, or the receipt thereof, copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by the Borrower or any of its ERISA Affiliates with the IRS with respect to each Pension Plan, (2) all notices received by the Borrower or any of its ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event, and (3) copies of such other documents or governmental reports or filings relating to any Plan as the Administrative Agent shall reasonably request; and (B), without limiting the generality of the foregoing, such certifications or other evidence of compliance with the provisions of Sections 4.13 and 7.9 as any Lender (through the Administrative Agent) may from time to time reasonably request; (e) [reserved]; (f) any material change in accounting policies or financial reporting practices by any Loan Party; (g) any changes to the beneficial ownership information set forth in the Collateral Information Certificate or such other information as is required under the Beneficial Ownership Regulation. The Loan Parties understand and acknowledge that the Secured Parties rely on such true, accurate and up-to-date beneficial ownership information to meet their regulatory obligations to obtain, verify and record information about the beneficial owners of their legal entity customers; and (h) any development or event that has had or could reasonably be expected to have a Material Adverse Effect. Each notice pursuant to this Section 6.8 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the relevant Group Member proposes to take with respect thereto. 6.9 Environmental Laws. (a) Comply in all material respects with, and ensure compliance in all material respects by all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply in all material respects with and maintain, and ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws. (b) Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws. 6.10 Operating Accounts. Except as otherwise agreed to by the Administrative Agent, maintain the Group Members’ depository, operating and securities accounts, Cash Management Services and excess cash with any Lender or such Lender’s Affiliates, provided that within 45 days (or such longer period as may be agreed by the Administrative Agent in its reasonable discretion) after the


 
opening of any such accounts (other than any Excluded Accounts (as defined in the Guarantee and Collateral Agreement)) not held with the Administrative Agent or its Affiliates, such accounts are subject to a first priority perfected Lien in favor of the Administrative Agent and Control Agreements in favor of the Administrative Agent. 6.11 Audits. At reasonable times, on at least five Business Day’s notice (provided that no notice is required if an Event of Default has occurred and is continuing), the Administrative Agent, or its agents, shall have the right to inspect the Collateral and the right to audit and copy any and all of any Loan Party’s books and records including ledgers, federal and state tax returns, records regarding assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information. The foregoing inspections and audits shall be at the Borrower’s expense provided that the maximum amount to be charged therefor to Borrower shall be $1,000 per person per day for up to two persons per day (or such higher amount as shall represent the Administrative Agent’s then-current standard charge for the same), plus reasonable out-of-pocket expenses. Such inspections and audits shall not be undertaken more frequently than once per year, unless an Event of Default has occurred and is continuing. 6.12 Additional Collateral, Etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired after the Closing Date by any Loan Party (other than (x) any property described in paragraph (b), (c) or (d) below, and (y) any property subject to a Lien expressly permitted by Section 7.3(g)) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (and in any event within three Business Days or such longer period as the Administrative Agent shall agree in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or advisable to evidence that such Loan Party is a Guarantor and to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or advisable in the opinion of the Administrative Agent to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority (except as expressly permitted by Section 7.3) security interest and Lien in such property, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $1,000,000 acquired after the Closing Date by any Loan Party (other than any such real property subject to a Lien expressly permitted by Section 7.3(g)), promptly (and in any event within sixty (60) days (or such longer time period as the Administrative Agent may agree in its sole discretion)) after such acquisition, to the extent requested by the Administrative Agent, (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Administrative Agent, provide the Lenders with title and extended coverage insurance covering such real property in an amount not in excess of the fair market value as reasonably estimated by the Borrower as well as a current ALTA survey thereof, together with a surveyor’s certificate, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. In connection with the foregoing, no later than five (5) Business Days prior to the date on which a Mortgage is executed and delivered pursuant to this Section 6.12, in order to comply with the Flood Laws, the Administrative Agent (for delivery to each Lender) shall have received the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard


 
determination form (a “Flood Determination Form”) and such other documents as any Lender may reasonably request to complete its flood due diligence, (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the applicable Loan Party (if applicable) (“Loan Party Notice”) that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the applicable Loan Party’s receipt of any such Loan Party Notice (e.g., countersigned Loan Party Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Loan Party Notice is required to be given and, to the extent flood insurance is required by any applicable Requirement of Law or any Lenders’ written regulatory or compliance procedures and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the applicable Loan Party’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance that complies with all applicable laws and regulations reasonably satisfactory to the Administrative Agent and each Lender (any of the foregoing being “Evidence of Flood Insurance”). Notwithstanding anything contained herein to the contrary, no Mortgage will be executed and delivered until each Lender has confirmed to the Administrative Agent that such Lender has satisfactorily completed its flood insurance due diligence and compliance requirements. (c) With respect to any new direct or indirect Subsidiary (other than an Excluded Foreign Subsidiary) created or acquired after the Closing Date (including pursuant to a Permitted Acquisition), or any new Subsidiary formed by Division, promptly, and in any event within 30 days (or such later date as agreed by the Administrative Agent in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such Subsidiary that is owned directly by such Loan Party, (ii) deliver to the Administrative Agent such documents and instruments as may be required to grant, perfect, protect and ensure the priority of such security interest, including but not limited to, the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions as are necessary or advisable in the opinion of the Administrative Agent to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement, with respect to such Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, in a form reasonably satisfactory to the Administrative Agent, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; it being agreed that if such new Subsidiary is formed by a Division, the foregoing requirements shall be satisfied substantially concurrently with the formation of such Subsidiary. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement, as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Excluded Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 66% of the total outstanding voting Capital Stock of any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock


 
powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action (including, as applicable, the delivery of any foreign law pledge documents reasonably requested by the Administrative Agent) as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Administrative Agent’s security interest therein, and (iii) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (e) At the request of the Administrative Agent, each Loan Party shall use commercially reasonable efforts to obtain a landlord’s agreement or bailee letter, as applicable, from the lessor of each leased property or bailee with respect to any warehouse, processor or converter facility or other location where Collateral is stored or located, which agreement or letter shall contain a waiver or subordination of all Liens or claims that the landlord or bailee may assert against the Collateral at that location, and shall otherwise be reasonably satisfactory in form and substance to the Administrative Agent. After the Closing Date, no real property or warehouse space (excluding expansion space for existing leased real property) shall be leased by any Loan Party and no Inventory shall be shipped to a processor or converter under arrangements established after the Closing Date, without the prior written consent of the Administrative Agent or unless and until a reasonably satisfactory landlord agreement or bailee letter, as appropriate, shall first have been obtained with respect to such location. Each Loan Party shall pay and perform its material obligations under all leases and other agreements with respect to each leased location or public warehouse where any Collateral is or may be located. 6.13 [Reserved]. 6.14 Use of Proceeds. Use the proceeds of each credit extension only for the purposes specified in Section 4.16. 6.15 Designated Senior Indebtedness. Cause the Loan Documents and all of the Obligations to be deemed “Designated Senior Indebtedness” or a similar concept thereto, if applicable, for purposes of any Indebtedness of the Loan Parties. 6.16 Anti-Corruption Laws. Conduct its business in compliance with all applicable Sanctions and anti-corruption laws and maintain policies and procedures designed to promote and achieve compliance with such laws. 6.17 Further Assurances. Execute any further instruments and take such further action as the Administrative Agent reasonably deems necessary to perfect, protect, ensure the priority of or continue the Administrative Agent’s Lien on the Collateral or to effect the purposes of this Agreement. SECTION 7 NEGATIVE COVENANTS The Borrower hereby agrees that, at all times prior to the Discharge of Obligations, the Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: 7.1 Financial Condition Covenants. (a) Annual Recurring Revenue Growth. For any fiscal quarter ending prior to the Financial Covenant Trigger Date, permit the Recurring Revenue, as calculated at the last day of such fiscal quarter for the period of four consecutive fiscal quarters then ending, to be less than 10% greater


 
than the Recurring Revenue calculated as of the last day of the corresponding four consecutive fiscal quarter ending the same fiscal quarter for the previous year. (b) Minimum Liquidity. For any calendar month ending prior to the Financial Covenant Trigger Date, permit Liquidity at any time during such month, reported as of the last day of any such calendar month, to be less than $20,000,00035,000,000. (c) Consolidated Total Net Leverage Ratio. For any fiscal quarter ending after the Financial Covenant Trigger Date, permit the Consolidated Total Net Leverage Ratio, as calculated at the last day of such fiscal quarter for the period of twelve consecutive months then ending, to be more than 3.505.50:1.00. (d) Consolidated Interest Coverage Ratio. For any fiscal quarter ending after the Financial Covenant Trigger Date, permit the Consolidated Interest Coverage Ratio, as calculated at the last day of such fiscal quarter for the period of twelve consecutive months then ending, to be less than 3.00:1.00. (e) Consolidated Senior Net Leverage Ratio. For any fiscal quarter ending after the Financial Covenant Trigger Date, permit the Consolidated Senior Net Leverage Ratio, as calculated at the last day of such fiscal quarter for the period of twelve consecutive months then ending, to be more than 3.50:1.00. (f) (e) Minimum Free Cash Flow. For(i) for any fiscal quarter ending on or prior to September 30, 2025, permit Free Cash Flow, as calculated at the last day of such fiscal quarter for the period of twelve consecutive months then ending, to be less than -$25,000,000. and (ii) for any fiscal quarter ending on or after December 31, 2025 and on or prior to September 30, 2026, permit Free Cash Flow, as calculated at the last day of such fiscal quarter for the period of twelve consecutive months then ending, to be less than $0. 7.2 Indebtedness. Create, issue, incur, assume, become liable in respect of or suffer to exist any Indebtedness, except: (a) Indebtedness of any Loan Party pursuant to any Loan Document and under any Cash Management Agreement; (b) Indebtedness of (i) any Loan Party owing to any other Loan Party; (ii) any Group Member (which is not a Loan Party) owing to any other Group Member (which is not a Loan Party); (iii) any Group Member (which is not a Loan Party) owing to any Loan Party, which constitutes an Investment permitted by Section 7.8(f)(iii); provided, that, such Indebtedness owing from any Group Member (which is not a Loan Party) to a Loan Party shall be evidenced by a master promissory note and such promissory note shall be pledged as Collateral; and (iv) any Loan Party owing to any Group Member (which is not a Loan Party); provided that such Indebtedness is subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent; (c) Guarantee Obligations (i) of any Loan Party of the Indebtedness of any other Loan Party; (ii) of any Group Member (which is not a Loan Party) of the Indebtedness of any Loan Party; (iii) by any Group Member (which is not a Loan Party) of the Indebtedness of any other Group Member (which is not a Loan Party) or (iv) of any Loan Party of the Indebtedness of any Group Member that is not a Loan Party, so long as the aggregate amount of such Guarantee Obligations is an Investment


 
permitted by Section 7.8(f)(iii); provided that, in any case of clauses (i), (ii), (iii) or (iv), the underlying Indebtedness so guaranteed is otherwise permitted by the terms hereof; (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (which do not shorten the maturity thereof or increase the principal amount thereof); (e) Indebtedness (including, without limitation, Capital Lease Obligations and purchase money financing) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding and any refinancings, refundings, renewals or extensions thereof (which do not shorten the maturity thereof or increase the principal amount thereof); (f) Surety Indebtedness and any other Indebtedness in respect of letters of credit, banker’s acceptances or similar arrangements, provided that the aggregate amount of any such Indebtedness outstanding at any time shall not exceed $2,000,000; (g) [reserved]; (h) unsecured Indebtedness of the Group Members in an aggregate principal amount, for all such Indebtedness taken together, not to exceed $5,000,000 at any one time outstanding; (i) obligations (contingent or otherwise) of the Group Members existing or arising under any Specified Swap Agreement, provided that such obligations are (or were) entered into by such Person in accordance with Section 7.13 and not for purposes of speculation; (j) Indebtedness of a Person (other than the Borrower or a Subsidiary) existing at the time such Person is merged with or into a Borrower or a Subsidiary or becomes a Subsidiary, provided that (i) such Indebtedness was not, in any case, incurred by such other Person in connection with, or in contemplation of, such merger or acquisition, (ii) such merger or acquisition constitutes a Permitted Acquisition, (iii) with respect to any such Person who becomes a Subsidiary, (A) such Subsidiary is the only obligor in respect of such Indebtedness, and (B) to the extent such Indebtedness is permitted to be secured hereunder, only the assets of such Subsidiary secure such Indebtedness, and (iv) the aggregate principal amount of such Indebtedness shall not exceed $5,000,000 at any time outstanding; (k) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business; and (l) Indebtedness consisting of the financing of insurance premiums.; and (m) Permitted Convertible Indebtedness in an aggregate principal amount not to exceed $350,000,000 at any time outstanding, and any Permitted Equity Derivative Transaction entered into in connection therewith (or any amendment, restatement, supplement or other modification thereof from time to time contemplated by the definition of “Permitted Equity Derivative Transaction”). 7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned or hereafter acquired, except:


 
(a) Liens for taxes not yet due or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the applicable Group Member in conformity with GAAP; (b) carriers’, warehousemen’s, landlord’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than 30 days or that are being contested in good faith by appropriate proceedings; (c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation; (d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business (other than for indebtedness or any Liens arising under ERISA); (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Group Member; (f) Liens in existence on the date hereof listed on Schedule 7.3(f); provided that (i) no such Lien is spread to cover any additional property after the Closing Date, (ii) the amount of Indebtedness secured or benefitted thereby is not increased, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured thereby is permitted by Section 7.2(d); (g) Liens securing Indebtedness incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or capital assets; provided that (i) such Liens shall be created substantially simultaneously with, or within 90 days after, the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, and (iii) the amount of Indebtedness secured thereby is not increased; (h) Liens created pursuant to the Security Documents; (i) any interest or title of a lessor or licensor under any lease or license entered into by a Group Member in the ordinary course of its business and covering only the assets so leased or licensed; (j) judgment Liens that do not constitute a Default or an Event of Default under Section 8.1(h) of this Agreement; (k) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash, Cash Equivalents, securities, commodities and other funds on deposit in one or more accounts maintained by a Group Member, in each case arising in the ordinary course of business in favor of banks, other depositary institutions, securities or commodities intermediaries or brokerages with which such accounts are maintained securing amounts owing to such banks or financial institutions with respect to cash management and operating account management or are arising under Section 4-208 or 4-210 of the UCC on items in the course of collection;


 
(l) (i) cash deposits and liens on cash and Cash Equivalents pledged to secure Indebtedness permitted under Section 7.2(f), (ii) Liens securing reimbursement obligations with respect to letters of credit permitted by Section 7.2(f) that encumber documents and other property relating to such letters of credit, and (iii) Liens securing Obligations under any Specified Swap Agreements permitted by Section 7.2(i); (m) Liens on property of a Person existing at the time such Person is acquired by, merged into or consolidated with a Group Member or becomes a Subsidiary of a Group Member or acquired by a Group Member; provided that (i) such Liens were not created in contemplation of such acquisition, merger, consolidation or Investment, (ii) such Liens do not extend to any assets other than those of such Person, and (iii) the applicable Indebtedness secured by such Lien is permitted under Section 7.2; (n) the replacement, extension or renewal of any Lien permitted by clause (m) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of the Indebtedness secured thereby; (o) Liens on insurance proceeds in favor of insurance companies granted solely to secure financed insurance premiums; (p) Liens in favor of custom and revenue authorities arising as a matter of law to secure the payment of custom duties in connection with the importation of goods; (q) Liens on any earnest money deposits required in connection with a Permitted Acquisition or consisting of earnest money deposits required in connection with an acquisition of property not otherwise prohibited hereunder; and (r) other Liens securing obligations in an outstanding amount not to exceed $5,000,000 at any one time. 7.4 Fundamental Changes. Consummate any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its property or business, except that: (a) (i) any Group Member that is not a Loan Party may be merged, amalgamated or consolidated with or into (A) any Loan Party (provided that a Loan Party shall be the continuing or surviving Person, or the continuing or surviving Person shall become a Loan Party substantially contemporaneous with such merger, amalgamation or consolidation) or (B) any Group Member that is not a Loan Party, and (ii) any Loan Party may be merged, amalgamated or consolidated with or into with any other Loan Party (provided that if such merger, amalgamation or consolidation involves the Borrower, the Borrower shall be the continuing or surviving Person); (b) (i) any Group Member that is not a Loan Party may Dispose of any or all of its assets (including upon voluntary liquidation, dissolution or otherwise) (A) to any other Group Member or (B) pursuant to a Disposition permitted by Section 7.5; and (ii) any Loan Party (other than the Borrower) may Dispose of any or all of its assets (including upon voluntary liquidation, dissolution or otherwise) (A) to any other Loan Party or (B) pursuant to a Disposition permitted by Section 7.5; and


 
(c) any Investment expressly permitted by Section 7.8 may be structured as a merger, consolidation or amalgamation. 7.5 Disposition of Property. Dispose of any of its property, whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except: (a) Dispositions of obsolete or worn out property in the ordinary course of business; (b) Dispositions of Inventory in the ordinary course of business; (c) Dispositions permitted by Sections 7.4(b)(i)(A) and (b)(ii)(A); (d) the sale or issuance of the Capital Stock of any Subsidiary of the Borrower (i) to the Borrower or any other Loan Party, or (ii) in connection with any transaction that does not result in a Change of Control; (e) the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (f) the non-exclusive licensing of patents, trademarks, copyrights, and other Intellectual Property rights in the ordinary course of business; (g) the Disposition of property (i) from any Loan Party to any other Loan Party, and (ii) from any Group Member (which is not a Loan Party) to any other Group Member; provided that in each case in which there is a Lien over the relevant property in favor of the Administrative Agent in advance of the Disposition, an equivalent Lien will be granted to the Administrative Agent by the Group Member which acquires the property; (h) Dispositions of property subject to a Casualty Event; (i) leases or subleases of real property; (j) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (k) any abandonment, cancellation, non-renewal or discontinuance of use or maintenance of Intellectual Property (or rights relating thereto) of any Group Member that the Borrower determines in good faith is desirable in the conduct of its business and not materially disadvantageous to the interests of the Lenders; (l) Restricted Payments permitted by Section 7.6, Investments permitted by Section 7.8 and Liens permitted by Section 7.3; and (m) Dispositions of other property having a fair market value not to exceed $5,000,000 in the aggregate for any fiscal year of the Group Members, provided that at the time of any such Disposition, no Event of Default shall have occurred and be continuing or would result from such Disposition; and provided further that the Net Cash Proceeds thereof are used to prepay the Term Loans in accordance with Section 2.12(e). Provided, however, that any Disposition made pursuant to this Section 7.5 (other than Dispositions (x) solely between Loan Parties, (y) Dispositions solely between Group Members that are


 
not Loan Parties or (z) Dispositions between a Loan Party and a Group Member that is not a Loan Party in which the terms thereof in favor of a Loan Party are at least arm’s length terms) shall be made in good faith on an arm’s length basis for fair value. 7.6 Restricted Payments. Make any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness or any Permitted Convertible Indebtedness, pay any earn-out payment, seller debt or deferred purchase price payments, declare or pay any dividend (other than dividends payable solely in Capital Stock (other than Disqualified Stock) of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Group Member (collectively, “Restricted Payments”), except that, so long as no Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) any Group Member may make Restricted Payments to any Loan Party, and any Group Member that is not a Loan Party may make Restricted Payments to any other Group Member; (b) the Borrower may deliver Capital Stock or make any payment (including payment of any premium) or delivery with respect to, or early unwinding or settlement or termination of, or any amendment, restatement, supplement or modified from time to time of, any Permitted Equity Derivative Transaction; (c) the Borrower may (i) make regularly scheduled payments of cash interest with respect to any Permitted Convertible Indebtedness and other payments permitted by Section 7.10(c) and (ii) deliver Capital Stock (other than Disqualified Stock) of the Borrower, cash or a combination thereof upon any redemption, repurchase, conversion or settlement with respect to any Permitted Convertible Indebtedness pursuant to its terms; provided that such Permitted Convertible Indebtedness is otherwise permitted by Section 7.2(m) and such issuance of Capital Stock or other payment is made pursuant to Section 7.10; (b) [reserved]; (c) [reserved]; (d) the Group Members may make payments in respect of tax expenses resulting from the quarterly vesting of restricted stock units so long as immediately after giving effect to such payment Liquidity shall equal or exceed $20,000,00035,000,000, and immediately after giving effect to such payment, the Group Members shall be in compliance with each of the covenants set forth in Section 7.1(a) and (b), based upon financial statements delivered to the Administrative Agent which give pro forma effect to the making of such payment.; (e) each Group Member may (i) purchase common stock or common stock options from present or former officers or employees of any Group Member upon the death, disability or termination of employment of such officer or employee; provided that the aggregate amount of payments made under this clause (i) shall not exceed $2,500,000 during any fiscal year of the Borrower, and (ii) declare and make dividend payments or other distributions payable solely in Capital Stock (other than Disqualified Stock);


 
(f) each Group Member may deliver its common Capital Stock upon(and cash in lieu of fractional shares of Capital Stock) upon exchange, conversion or redemption of any convertible Indebtedness having been issued by the Borrower (other than any Permitted Convertible Indebtedness); provided that such Indebtedness is otherwise permitted by Section 7.2; and (g) the Group Members may make earn-out payments, payments in respect of seller debt or deferred purchase price payments in connection with a Permitted Acquisition so long as immediately after giving effect to such payment Liquidity shall equal or exceed $20,000,00035,000,000, and immediately after giving effect to such purchase or other acquisition, the Group Members shall be in compliance with each of the covenants set forth in Section 7.1(a) and (b), based upon financial statements delivered to the Administrative Agent which give pro forma effect to the making of such payment. 7.7 Consolidated Capital Expenditures. Make or commit to make any Consolidated Capital Expenditure (excluding Consolidated Capital Expenditures made with the Net Cash Proceeds of Assets Sales or Recovery Events), except Consolidated Capital Expenditures made by the Group Members in the ordinary course of business and not exceeding $20,000,000 during any fiscal year, for all such Consolidated Capital Expenditures of all of the Group Members taken together. 7.8 Investments. Make any advance, loan, extension of credit (by way of guarantee or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, or make any other investment in, any Person (all of the foregoing, “Investments”), except: (a) extensions of trade credit in the ordinary course of business; (b) Investments in cash and Cash Equivalents; (c) Guarantee Obligations permitted by Section 7.2; (d) loans and advances to employees of any Group Member in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Group Members not to exceed $500,000 at any one time outstanding; (e) [Reserved]; (e) the MANTL Acquisition; provided that the aggregate amount of the consideration (excluding Capital Stock of the Borrower that is not Disqualified Stock) paid in connection with the MANTL Acquisition shall not exceed $410,000,000; (f) intercompany Investments by (i) any Loan Party in any other Loan Party, (ii) any Group Member that is not a Loan Party in any other Group Member, or (iii) any Loan Party in any Group Member that is not a Loan Party to the extent that, in the case of clause (iii) only, (A) no Default or Event of Defaults exists or would result therefrom, (B) immediately after giving effect to such Investment, Liquidity is at least $15,000,00035,000,000 and (C) such Investments do not exceed $2,000,000 in any fiscal year of the Group Members; (g) Investments in the ordinary course of business consisting of endorsements of negotiable instruments for collection or deposit;


 
(h) Investments received in settlement of amounts due to any Group Member effected in the ordinary course of business or owing to such Group Member as a result of Insolvency Proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of such Group Member; (i) Investments held by any Person as of the date such Person is acquired in connection with a Permitted Acquisition, provided that (A) such Investments were not made, in any case, by such Person in connection with, or in contemplation of, such Permitted Acquisition, and (B) with respect to any such Person which becomes a Subsidiary as a result of such Permitted Acquisition, such Subsidiary remains the only holder of such Investment; (j) so long as no Event of Default exists at the time of such Investment or immediately after giving effect thereto, in addition to Investments otherwise expressly permitted by this Section, Investments by the Group Members the aggregate amount of all of which Investments (valued at cost) does exceed $5,000,000 during any fiscal year of the Group Members; (k) deposits made to secure the performance of leases, licenses or contracts in the ordinary course of business, and other deposits made in connection with the incurrence of Liens permitted under Section 7.3; (l) promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 7.5, to the extent not exceeding the limits specified therein with respect to the receipt of non-cash consideration in connection with such Dispositions; and (m) Permitted Equity Derivative Transactions to the extent constituting Investments; and (n) (m) purchases or other acquisitions by any Loan Party of the Capital Stock in a Person that, upon the consummation thereof, will be a Subsidiary (including as a result of a merger or consolidation) or all or substantially all of the assets of, or assets constituting one or more business units of, any Person (each, a “Permitted Acquisition”); provided that, with respect to each such purchase or other acquisition: (i) the newly-created or acquired Subsidiary (or assets acquired in connection with such asset sale) shall be (x) in the same or a related line of business as that conducted by the Borrower on the date hereof, or (y) in a business that is permitted by Section 7.17 (ii) all transactions related to such purchase or acquisition shall be consummated in all material respects in accordance with all Requirements of Law; (iii) no Loan Party shall, as a result of or in connection with any such purchase or acquisition, assume or incur any direct or contingent liabilities (whether relating to environmental, tax, litigation or other matters) that, as of the date of such purchase or acquisition, could reasonably be expected to result in the existence or incurrence of a Material Adverse Effect; (iv) the Borrower shall give the Administrative Agent at least ten (10) Business Days’ prior written notice of any such purchase or acquisition; (v) the Borrower shall provide to the Administrative Agent as soon as available but in any event not later than five (5) Business Days after the execution thereof, a copy of any executed purchase agreement or similar agreement with respect to any such purchase or acquisition;


 
provided that, to the extent any such agreements are included in materials otherwise filed with the SEC pursuant to Section 6.1, such agreements shall be deemed to have been delivered on such date of filing; (vi) any such newly-created or acquired Subsidiary, or the Loan Party that is the acquirer of assets in connection with an asset acquisition, shall comply with the requirements of Section 6.12, except to the extent compliance with Section 6.12 is prohibited by pre-existing Contractual Obligations or Requirements of Law binding on such Subsidiary or its properties; (vii) Liquidity shall equal or exceed $25,000,00035,000,000 as of the date the definitive agreements relating to any such acquisition or other purchase are executed (after giving effect to the consummation of such acquisition or other purchase); (viii) (x) immediately before and immediately after giving effect to any such purchase or other acquisition, no Default or Event of Default shall have occurred and be continuing and (y) immediately after giving effect to such purchase or other acquisition, the Group Members shall be in compliance with each of the covenants set forth in Section 7.1, based upon financial statements delivered to the Administrative Agent which give effect to such acquisition or other purchase; (ix) the Borrower shall not, based upon the knowledge of the Borrower as of the date any such acquisition or other purchase is consummated, reasonably expect such acquisition or other purchase to result in a Default or an Event of Default under Section 8.1(c), at any time during the term of this Agreement, as a result of a breach of any of the financial covenants set forth in Section 7.1; (x) no Indebtedness is assumed or incurred in connection with any such purchase or acquisition other than Indebtedness permitted by the terms of Section 7.2(j); (xi) such purchase or acquisition shall not constitute an Unfriendly Acquisition; (xii) the aggregate amount of the consideration (excluding Capital Stock of the Borrower that is not Disqualified Stock) paid by such Group Member in connection with any particular Permitted Acquisition shall not exceed $75,000,000; (xiii) each such Permitted Acquisition is of a Person organized under the laws of the United States and engaged in business activities primarily conducted within the United States or, notwithstanding any other terms of this Agreement, shall become a Borrower or Guarantor; (xiv) the Borrower shall have delivered to the Administrative Agent, at least five Business Days prior to the date on which any such purchase or other acquisition is to be consummated (or such later date as is agreed by the Administrative Agent in its sole discretion), a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this definition have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; and (xv) the assets being acquired or the target whose stock is being acquired did not have, in the aggregate for all such acquisitions in any trailing twelve month period, pro forma Consolidated EBITDA loss greater than $5,000,000 during the 12 month consecutive period most recently concluded prior to the date such acquisition or other purchase is consummated; provided that any projections prepared in connection with such acquisition shall reflect projected positive pro forma Consolidated EBITDA for such acquired assets or target within twenty-four (24) months.


 
7.9 ERISA. The Borrower shall not, and shall not permit any of its ERISA Affiliates to take any of the following actions if any such action would reasonably be expected to result in a Material Adverse Effect: (a) terminate any Pension Plan, (b) permit to exist any ERISA Event, (c) make a complete or partial withdrawal (within the meaning of ERISA Section 4201) from any Multiemployer Plan, (d) enter into any new Plan or modify any existing Plan so as to increase its obligations thereunder which could result in any material liability to any ERISA Affiliate, (e) [reserved], or (f) engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by the Administrative Agent or any Lender of any of its rights under this Agreement, any Note or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA or Section 4975 of the Code. 7.10 Optional Payments and Modifications of Certain Preferred Stock and Debt Instruments. (a) Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Preferred Stock (i) that would move to an earlier date the scheduled redemption date (but only to the extent that moving any such scheduled redemption date would result in the redemption to be prior to ninety-one (91) days after the Revolving Termination Date) or increase the amount of any scheduled redemption payment or increase the rate or move to an earlier date any date for payment of dividends thereon or (ii) that could reasonably be expected to be otherwise materially adverse to any Lender or any other Secured Party; or (b) other than pursuant to any refinancing or replacement of Indebtedness permitted by Section 7.2, amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any Indebtedness permitted by Section 7.2 (other than Indebtedness pursuant to any Loan Document and Subordinated Indebtedness which is addressed in Section 7.22) that would shorten the maturity (but only to the extent such shortening, would result in the maturity of such Indebtedness to be prior to 91 days after the Revolving Termination Date) or increase the amount of any payment of principal thereof or the rate of interest thereon or shorten any date for payment of interest thereon or that could reasonably be expected to be otherwise materially adverse to any Lender or any other Secured Party.; provided that, for the avoidance of doubt, activities permitted pursuant to clause (c) of this Section 7.10 shall not be prohibited by this clause (b); or (c) make any payment or prepayment of principal of, premium, if any, or redemption, purchase, retirement, defeasance, sinking fund, settlement, conversion or similar payment with respect to any Permitted Convertible Indebtedness not expressly required pursuant to the terms of the agreements governing such Permitted Convertible Indebtedness unless (i) made exclusively with Capital Stock (other than Disqualified Stock) of the Borrower and cash in lieu of fractional shares and/or to pay accrued interest, if any, on such Permitted Convertible Indebtedness, (ii) made for cash exclusively using proceeds of a substantially concurrent refinancing or replacement of such Permitted Convertible Indebtedness permitted pursuant to Section 7.2 and/or (iii) made in exchange for a new issuance of Permitted Convertible Indebtedness. 7.11 Transactions with Affiliates. Enter into any transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than any other Loan Party) unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of the relevant Group Member, and (c) upon fair and reasonable terms no less favorable to the relevant Group Member than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate. 7.12 Sale Leaseback Transactions. Enter into any Sale Leaseback Transaction, except in connection with transactions that would be permitted under this Section 7. 7.13 Swap Agreements. Enter into any Swap Agreement, except (a) Specified Swap Agreements which are entered into by a Group Member to (ai) hedge or mitigate risks to which such Group Member has actual exposure (other than those in respect of Capital Stock), or (bii) effectively cap,


 
collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of such Group Member, or (b) Permitted Equity Derivative Transactions. 7.14 Accounting Changes. Make any change in its (a) accounting policies or reporting practices, except as required or, so long as such changes are immaterial, permitted by GAAP, or (b) fiscal year. 7.15 Negative Pledge Clauses. Enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, to secure its Obligations under the Loan Documents to which it is a party, other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby), and (c) customary restrictions on the assignment of leases, licenses and other agreements. 7.16 Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held by, or to pay any Indebtedness owed to, any other Group Member, (b) make loans or advances to, or other Investments in, any other Group Member, or (c) transfer any of its assets to any other Group Member, except for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with a Disposition permitted hereby of all or substantially all of the Capital Stock or assets of such Subsidiary, or (iii) customary restrictions on the assignment of leases, licenses and other agreements. 7.17 Lines of Business. Enter into any business, either directly or through any Subsidiary, except for those businesses in which the Group Members are engaged on the date of this Agreement or that are reasonably related, ancillary or incidental thereto. 7.18 Designation of other Indebtedness. Designate any Indebtedness or indebtedness (other than the Obligations or the Permitted Convertible Indebtedness) as “Designated Senior Indebtedness” or a similar concept thereto, if applicable. 7.19 [Reserved]. 7.20 Amendments to Organizational Agreements and Material Contracts. (a) Amend or permit any amendments to any Loan Party’s organizational documents if such amendment would be adverse to the Administrative Agent or the Lenders in any material respect; or (b) amend or permit any amendments to, or terminate or waive any provision of, any material Contractual Obligation if such amendment, termination, or waiver would be adverse to the Administrative Agent or the Lenders in any material respect. 7.21 Use of Proceeds. Use the proceeds of any Loan or extension of credit hereunder, whether directly or indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin stock (within the meaning of Regulation U of the Board) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund Indebtedness originally incurred for such purpose, in each case in violation of, or for a purpose which violates, or would be inconsistent with, Regulation T, U or X of the Board; (b) to finance an Unfriendly Acquisition; (c) to fund any activities of


 
or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, Issuing Lender, Swingline Lender, or otherwise) of Sanctions (or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity in violation of the foregoing); or (d) for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or other similar legislation in other jurisdictions. 7.22 Subordinated Debt. (a) Amendments. Amend, modify, supplement, waive compliance with, or consent to noncompliance with, any Subordinated Debt Document, unless the amendment, modification, supplement, waiver or consent (i) does not adversely affect the Group Members’ ability to pay and perform each of their Obligations at the time and in the manner set forth herein and in the other Loan Documents and is not otherwise adverse to the Administrative Agent and the Lenders, and (ii) is in compliance with the subordination provisions therein and any subordination agreement with respect thereto in favor of the Administrative Agent and the Lenders. (b) Payments. Make any payment (including any interest payment, other than paid-in-kind interest), prepayment or repayment on, redemption, exchange or acquisition for value of, any sinking fund or similar payment with respect to, any Subordinated Indebtedness, except as permitted by the subordination provisions in the applicable Subordinated Debt Documents and any subordination agreement with respect thereto in favor of the Administrative Agent and the Lenders. 7.23 Anti-Terrorism Laws. Conduct, deal in or engage in or permit any Affiliate or agent of any Loan Party within its control to conduct, deal in or engage in any of the following activities: (a) conduct any business or engage in any transaction or dealing with any person blocked pursuant to Executive Order No. 13224 (a “Blocked Person”), including the making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person; (b) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224; or (c) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or the Patriot Act. SECTION 8 EVENTS OF DEFAULT 8.1 Events of Default. The occurrence of any of the following shall constitute an Event of Default: (a) the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof, or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof, in each case other than as a result of the Administrative Agent failing to make automatic debits from the Borrower’s deposit accounts contemplated by Section 10.18 of this Agreement (excluding, for the avoidance of doubt, such instances where the automatic debit does not occur due to insufficient funds in such deposit accounts); or


 
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading in any material respect when made or deemed made; or (c) (i) any Loan Party shall default in the observance or performance of any agreement contained in, Section 5.3, Section 6.1, Section 6.2, Section 6.3(c), clause (i) or (ii) of Section 6.5(a), Section 6.6(b), clause (a) of Section 6.8, Section 6.10, Section 6.16 or Section 7 of this Agreement or (ii) an “Event of Default” under and as defined in any Security Document shall have occurred and be continuing; or (d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1), and such default shall continue unremedied for a period of 30 days after the earlier of (i) written notice thereof from the Administrative Agent to the Borrower or (ii) knowledge of a Responsible Officer of the Borrower; or (e) (i) any Group Member shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000; provided, further, that this clause (e)(i) shall not apply to (x) any early payment requirement or unwinding or termination with respect to any Permitted Equity Derivative Transaction, or satisfaction of any condition giving rise to or permitting the foregoing, in accordance with the terms thereof, so long as, in any such case, the Group Members are not (i) the “defaulting party” or (ii) otherwise in breach in any material respect under the terms of such Permitted Equity Derivative Transaction, or (y) any event that permits or causes repurchase, payment, prepayment, redemption, conversion, settlement or exchange of Permitted Convertible Indebtedness that is not the result of a breach, in any material respect, or default by a Group Member of the terms of an agreement governing such Permitted Convertible Indebtedness or an event or condition that constitutes an Event of Default hereunder; or (ii) any default or event of


 
default (however designated) shall occur with respect to any Subordinated Indebtedness of any Group Member; or (f) (i) any Group Member shall commence any case, proceeding or other action (a) under any Debtor Relief Law seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member any case, proceeding or other action of a nature referred to in clause (i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iii) there shall be commenced against any Group Member any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iv) any Group Member shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (g) there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 during the term of this Agreement; or there exists an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,000; or (h) there is entered against any Group Member (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof; or (i) (i) any of the Security Documents shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or (ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business; or (j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert in writing; or


 
(k) a Change of Control shall occur; or (l) any of the Governmental Approvals shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such revocation, rescission, suspension, modification or nonrenewal could reasonably be expected to materially adversely affect the status of or legal qualifications of any Group Member to hold any material Governmental Approval in any other jurisdiction; or (m) any Loan Document (including the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document. 8.2 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions: (a) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) of Section 8.1 with respect to the Borrower, the Commitments shall immediately terminate automatically and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall automatically immediately become due and payable, and (b) if such event is any other Event of Default, any of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving Commitments, the Term Commitments, the Swingline Commitments and the L/C Commitments to be terminated forthwith, whereupon the Revolving Commitments, the Term Commitments, the Swingline Commitments and the L/C Commitments shall immediately terminate; (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable; (iii) any Cash Management Bank may terminate any Cash Management Agreement then outstanding and declare all Obligations then owing by the Group Members under any such Cash Management Agreements then outstanding to be due and payable forthwith, whereupon the same shall immediately become due and payable; and (iv) the Administrative Agent may exercise on behalf of itself, any Cash Management Bank, the Lenders and the Issuing Lender all rights and remedies available to it, any such Cash Management Bank, the Lenders and the Issuing Lender under the Loan Documents. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall Cash Collateralize an amount equal to 105% of the aggregate then undrawn and unexpired amount of such


 
Letters of Credit. Amounts so Cash Collateralized shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other Obligations of the Borrower hereunder and under the other Loan Documents in accordance with Section 8.3. In addition, (x) the Borrower shall also Cash Collateralize the full amount of any Swingline Loans then outstanding, and (y) to the extent elected by any applicable Cash Management Bank, the Borrower shall also Cash Collateralize the amount of any Obligations in respect of Cash Management Services then outstanding, which Cash Collateralized amounts shall be applied by the Administrative Agent to the payment of all such outstanding Cash Management Services, and any unused portion thereof remaining after all such Cash Management Services shall have been fully paid and satisfied in full shall be applied by the Administrative Agent to repay other Obligations of the Loan Parties hereunder and under the other Loan Documents in accordance with the terms of Section 8.3. (c) After all such Letters of Credit and Cash Management Agreements shall have been terminated, expired or fully drawn upon, as applicable, and all amounts drawn under any such Letters of Credit shall have been reimbursed in full and all other Obligations of the Borrower and the other Loan Parties (including any such Obligations arising in connection with Cash Management Services) shall have been paid in full, the balance, if any, of the funds having been so Cash Collateralized shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower. 8.3 Application of Funds. After the exercise of remedies provided for in Section 8.2, any amounts received by the Administrative Agent on account of the Obligations shall be applied by the Administrative Agent in the following order: First, to the payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest but including any Collateral-Related Expenses, fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Sections 2.19, 2.20 and 2.21 (including interest thereon)) payable to the Administrative Agent, in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, and Letter of Credit Fees) payable to the Lenders, the Issuing Lender ((including any Letter of Credit Fronting Fees and Issuing Lender Fees), and any Qualified Counterparty and any applicable Cash Management Bank (in its respective capacity as a provider of Cash Management Services), and the documented out-of-pocket fees, charges and disbursements of counsel to the respective Lenders and the Issuing Lender, and amounts payable under Sections 2.19, 2.20 and 2.21), in each case, ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to the extent that the Swingline Lender has advanced any Swingline Loans that have not been refunded by each Lender’s Swingline Participation Amount, payment to the Swingline Lender of that portion of the Obligations constituting the unpaid principal of and interest upon the Swingline Loans advanced by the Swingline Lender; Fourth, to the payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest in respect of any Cash Management Services and on the Loans and L/C Disbursements which have not yet been converted into Revolving Loans, and to payment of premiums


 
and other fees (including any interest thereon) under any Specified Swap Agreements and any Cash Management Agreements, in each case, ratably among the Lenders, any applicable Cash Management Bank (in its respective capacity as a provider of Cash Management Services), and any Qualified Counterparties, in each case, ratably among them in proportion to the respective amounts described in this clause Fourth payable to them; Fifth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Disbursements which have not yet been converted into Revolving Loans, and settlement amounts, payment amounts and other termination payment obligations under any Specified Swap Agreements and Cash Management Agreements, in each case, ratably among the Lenders, any applicable Cash Management Bank (in its respective capacity as a provider of Cash Management Services), and any applicable Qualified Counterparties, in each case, ratably among them in proportion to the respective amounts described in this clause Fifth and payable to them; Sixth, to the Administrative Agent for the account of the Issuing Lender, to Cash Collateralize that portion of the L/C Exposure comprised of the aggregate undrawn amount of Letters of Credit pursuant to Section 3.10; Seventh, for the account of any applicable Qualified Counterparty and any applicable Cash Management Bank, to any settlement amounts, payment amounts and other termination payment obligations under any Specified Swap Agreements and Cash Management Agreements not paid pursuant to clause Fifth and to cash collateralize Obligations arising under any then outstanding Specified Swap Agreements and Cash Management Services, in each case, ratably among them in proportion to the respective amounts described in this clause Seventh payable to them; Eighth, to the payment of all other Obligations of the Loan Parties that are then due and payable to the Administrative Agent and the other Secured Parties on such date, in each case, ratably among them in proportion to the respective aggregate amounts of all such Obligations described in this clause Eighth and payable to them; Last, the balance, if any, after the Discharge of Obligations, to the Borrower or as otherwise required by Law. Subject to Sections 2.24(a), 3.4, 3.5 and 3.10, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Sixth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral for Letters of Credit after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Notwithstanding the foregoing, no Excluded Swap Obligation of any Guarantor shall be paid with amounts received from such Guarantor or from any Collateral in which such Guarantor has granted to the Administrative Agent a Lien (for the benefit of the Secured Parties) pursuant to the Guarantee and Collateral Agreement; provided, however, that each party to this Agreement hereby acknowledges and agrees that appropriate adjustments shall be made by the Administrative Agent (which adjustments shall be controlling in the absence of manifest error) with respect to payments received from other Loan Parties to preserve the allocation of such payments to the satisfaction of the Obligations in the order otherwise contemplated in this Section 8.3.


 
SECTION 9 THE ADMINISTRATIVE AGENT 9.1 Appointment and Authority. (a) Each of the Lenders hereby irrevocably appoints SVB to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. (b) The provisions of Section 9 are solely for the benefit of the Administrative Agent, the Lenders, the Issuing Lender, and the Swingline Lender, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or obligations, except those expressly set forth herein and in the other Loan Documents, 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. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. (c) The Administrative Agent shall also act as the collateral agent under the Loan Documents, and each of the Lenders (in their respective capacities as a Lender and, as applicable, Qualified Counterparty and provider of Cash Management Services) hereby irrevocably (i) authorizes the Administrative Agent to enter into all other Loan Documents, as applicable, including the Guarantee and Collateral Agreement and any Subordination Agreements, and (ii) appoints and authorizes the Administrative Agent to act as the agent of the Secured Parties 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. The Administrative Agent, as collateral agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.2 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 and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 9 and Section 10 (including Section 9.7, as though such co-agents, sub-agents and attorneys-in-fact were the collateral agent under the Loan Documents) as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Administrative Agent is further authorized on behalf of all the Lenders, without the necessity of any notice to or further consent from the Lenders, from time to time to take any action, or permit the any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent to take any action, with respect to any Collateral or the Loan Documents which may be necessary to perfect and maintain perfected the Liens upon any Collateral granted pursuant to any Loan Document. 9.2 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Section shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their


 
respective activities in connection with the syndication of the Facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents. 9.3 Exculpatory Provisions. The Administrative Agent shall have no duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent shall not: (a) be subject to any fiduciary or other implied duties, regardless of whether any Default or any Event of Default has occurred and is continuing; (b) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), as applicable; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and (c) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and the Administrative Agent shall not 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 any Person serving as the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.2 and 10.1), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall not 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 (v) the satisfaction of any condition set forth in Section 5.1, Section 5.2 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 9.4 Reliance by Administrative Agent. The Administrative 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) believed by it to be genuine and to have been signed, sent or


 
otherwise authenticated by the proper Person. The Administrative 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 the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for any of the Loan Parties), 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. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative 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 such other number or percentage of Lenders as shall be provided for herein or in the other Loan Documents) 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. The Administrative 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 such other number or percentage of Lenders as shall be provided for herein or in the other Loan Documents), and such request and any action taken or failure to act pursuant thereto shall be binding upon the Lenders and all future holders of the Loans. 9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received notice in writing from a Lender or a Loan Party 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 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. 9.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys in fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of a Group Member or any Affiliate of a Group Member, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties, 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 Group Members and their Affiliates and made its own credit analysis and decision to make its Loans hereunder and enter into this Agreement. Each Lender also agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, the other Loan Documents or any related agreement or any


 
document furnished hereunder or thereunder, 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 Group Members and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall have no 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 Group Member or any Affiliate of a Group Member that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys in fact or Affiliates. 9.7 Indemnification. Each of the Lenders agrees to indemnify each of the Administrative Agent, the Issuing Lender and the Swingline Lender and each of its Related Parties in its capacity as such (to the extent not reimbursed by any Loan Party and without limiting the obligation of the Loan Parties to do so) according to its Aggregate Exposure Percentage in effect on the date on which indemnification is sought under this Section 9.7 (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, in accordance with its Aggregate Exposure Percentage immediately prior to such date), 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 the Administrative Agent or such other Person 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 the Administrative Agent or such other Person under or in connection with any of the foregoing and any other amounts not reimbursed by the Loan Parties; 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 primarily from the Administrative Agent’s or such other Person’s gross negligence or willful misconduct, and that with respect to such unpaid amounts owed to any Issuing Lender or Swingline Lender solely in its capacity as such, only the Revolving Lenders shall be required to pay such unpaid amounts, such payment to be made severally among them based on such Revolving Lenders’ Revolving Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought). The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder. 9.8 Agent in Its Individual Capacity. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Group Members or any Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. 9.9 Successor Administrative Agent. (a) The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor with the prior written consent of the Borrower so long as no Event of Default has occurred or is continuing. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring


 
Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and to such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. (c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Secured Parties under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and such collateral security is assigned to such successor Administrative Agent) and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of Section 9 and Section 10.5 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as the Administrative Agent. 9.10 Collateral and Guaranty Matters. (a) The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, (i) to release any Lien on any Collateral or other property granted to or held by the Administrative Agent under any Loan Document (A) upon the Discharge of Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Lender shall have been made), (B) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted


 
hereunder or under any other Loan Document, or (C) subject to Section 10.1, if approved, authorized or ratified in writing by the Required Lenders; (ii) to subordinate any Lien on any Collateral or other property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 7.3(e) and (i); and (iii) to release any Guarantor from its obligations under the Guarantee and Collateral Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the guaranty pursuant to this Section 9.10. (b) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. (c) Notwithstanding anything contained in any Loan Document, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any guaranty of the Obligations (including any such guaranty provided by the Guarantors pursuant to the Guarantee and Collateral Agreement), it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof; provided that, for the avoidance of doubt, in no event shall a Secured Party be restricted hereunder from filing a proof of claim on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law or any other judicial proceeding. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of such Secured Party (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 Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the guarantees of the Obligations provided by the Loan Parties under the Guarantee and Collateral Agreement, to have agreed to the foregoing provisions. In furtherance of the foregoing, and not in limitation thereof, no Specified Swap Agreement and no Cash Management Agreement, the Obligations under which constitute Obligations, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the Obligations of any Loan Party under any Loan Document except as expressly provided herein or in the Guarantee and Collateral Agreement. By accepting the benefits of the Collateral and of the guarantees of the Obligations provided by the Loan Parties under the Guarantee and Collateral Agreement, any Secured Party that is a Cash Management Bank or a Qualified Counterparty shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and to have agreed


 
to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. 9.11 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or Obligation in respect of any Letter of Credit 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 (but not obligated), 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 the Loans, Obligations in respect of any Letter of Credit and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.9 and 10.5) 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 any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, 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 Sections 2.9 and 10.5. 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 any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. 9.12 No Other Duties, etc.. Anything herein to the contrary notwithstanding, none of the “Bookrunners,” “Documentation Agents,” or “Arrangers,” listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender, the Issuing Lender or the Swingline Lender hereunder. 9.13 Cash Management Bank and Qualified Counterparty Reports. Each Cash Management Bank and each Qualified Counterparty agrees to furnish to the Administrative Agent, as frequently as the Administrative Agent may reasonably request, with a summary of all Obligations in respect of Cash Management Services and/or Specified Swap Agreements, as applicable, due or to become due to such Cash Management Bank or Qualified Counterparty, as applicable. In connection with any distributions to be made hereunder, the Administrative Agent shall be entitled to assume that no amounts are due to any Cash Management Bank or Qualified Counterparty (in its capacity as a Cash Management Bank or Qualified Counterparty and not in its capacity as a Lender) unless the Administrative Agent has received written notice thereof from such Cash Management Bank or Qualified Counterparty and if such notice is received, the Administrative Agent shall be entitled to assume that the


 
only amounts due to such Cash Management Bank or Qualified Counterparty on account of Cash Management Services or Specified Swap Agreements are set forth in such notice. 9.14 Erroneous Payments (b) If the Administrative Agent notifies a Lender, Issuing Lender, Swingline Lender, or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender, or Secured Party (any such Lender, Issuing Lender, Swingline Lender, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Swingline Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), 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 such Lender, Issuing Lender, Swingline Lender, or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days 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 (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 in same day funds 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 compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. (c) Without limiting immediately preceding clause (a), each Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) 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, (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), or (z) that such Lender, Issuing Lender, Swingline Lender, or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case: (i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and (ii) such Lender, Issuing Lender, Swingline Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its


 
receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.14(b). (d) Each Lender, Issuing Lender, Swingline Lender or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender, Swingline Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Lender, Swingline Lender or Secured Party from any sourceunder any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to the Administrative Agent under clause (a) hereof or under the indemnification provisions of this Agreement. (e) 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 clause (a) hereof, from any Lender, Issuing Lender or Swingline Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender, Issuing Lender or Swingline Lender at any time, (i) such Lender, Issuing Lender or Swingline Lender shall be deemed to have assigned its Loans (but not its Commitments) with respect to which such Erroneous Payment was made in an amount 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), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Lender, Issuing Lender or Swingline Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, Issuing Lender or Swingline Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender, assigning Issuing Lender or assigning Swingline Lender shall cease to be a Lender, Issuing Lender or Swingline Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, assigning Issuing Lender or assigning Swingline Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender, Issuing Lender or Swingline Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender, Issuing Lender or Swingline Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender, Issuing Lender or Swingline Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, Issuing Lender, Swingline Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).


 
(f) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy 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 for the purpose of making such Erroneous Payment. (g) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, 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 Payment received, including without limitation any defense based on “discharge for value” or any similar doctrine (h) Each party’s obligations, agreements and waivers under this Section 9.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, the replacement of, a Lender, a Swingline Lender or Issuing Lender, or the Discharge of Obligations (or any portion thereof). 9.15 Survival. This Section 9 shall survive the Discharge of Obligations. SECTION 10 MISCELLANEOUS 10.1 Amendments and Waivers. (a) Neither this Agreement, any other Loan Document (other than any L/C Related Document), nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (i) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (ii) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided that no such waiver and no such amendment, supplement or modification shall (A) forgive the principal amount or extend the final scheduled date of maturity of any Loan, extend the scheduled date of any amortization payment in respect of any Term Loan, reduce the stated rate of any interest or fee payable or any other amounts payable hereunder (except that no amendment or modification of defined terms used in the financial covenants in this Agreement or waiver of any Default or Event of Default or the right to receive interest at the Default Rate) shall constitute a reduction in the rate of interest or fees for purposes of this clause (A)) or extend the scheduled date of any payment thereof, or increase the amount (including by any amendment or modification to the definition of Borrowing Base) or extend the expiration date of any Lender’s Revolving Commitment or Term Commitment, in each case, without the written consent of each Lender directly affected thereby; (B) eliminate or reduce the voting rights of any Lender under this Section 10.1 without the written consent of such Lender; (C) reduce any percentage specified in the definition of Required Lenders, reduce the number of Lenders required to approve, consent or otherwise


 
take any other action as specified in any of the Loan Documents, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release all or substantially all of the value of the guarantees (taken as a whole) of the Guarantors from their obligations under the Guarantee and Collateral Agreement, in each case without the written consent of all Lenders; (D) (i) amend, modify or waive the pro rata requirements of Section 2.18 or any other provision of the Loan Documents requiring pro rata treatment of the Lenders in a manner that adversely affects Revolving Lenders without the written consent of each Revolving Lender or (ii) amend, modify or waive the pro rata requirements of Section 2.18 or any other provision of the Loan Documents requiring pro rata treatment of the Lenders in a manner that adversely affects Term Lenders or the L/C Lenders without the written consent of each Term Lender and/or, as applicable, each L/C Lender; (E) amend the definition of Majority Revolving Lenders, the definition of Majority Term Lenders, and the definition of Required Lenders without the written consent of each affected Lender; (F) amend, modify or waive any provision of Section 9 without the written consent of the Administrative Agent; (G) amend, modify or waive any provision of Section 2.6 or 2.7 without the written consent of the Swingline Lender; (H) amend, modify or waive any provision of Section 3 without the written consent of the Issuing Lender; or (I) (i) amend or modify the application of prepayments set forth in Section 2.12(e) in a manner that adversely affects Revolving Lenders without the written consent of the Majority Revolving Lenders, (ii) amend or modify the application of prepayments set forth in Section 2.12(e) in a manner that adversely affects Term Lenders or the L/C Lenders without the written consent of the Majority Term Lenders and, as applicable, the L/C Lenders, (iii) amend or modify the application of payments set forth in Section 8.3 in a manner that adversely affects the Lenders without the written consent of each affected Lender, or (iv) amend or modify the application of payments provisions set forth in Section 8.3 in a manner that adversely affects the Issuing Lender, any Cash Management Bank or any Qualified Counterparty, as applicable, without the written consent of the Issuing Lender, such Cash Management Bank or any such Qualified Counterparty, as applicable. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent, the Issuing Lender, each Cash Management Bank, each Qualified Counterparty, and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured during the period such waiver is effective; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Notwithstanding the foregoing, the Issuing Lender may amend any of the L/C Related Documents without the consent of the Administrative Agent or any other Lender and the Issuing Lender, Administrative Agent and the Borrower may make customary technical amendments if any Letter of Credit shall be issued hereunder in a currency other than U.S. Dollars. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any 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 effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Revolving 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. (b) Notwithstanding anything to the contrary contained in Section 10.1(a) above, in the event that the Borrower requests that this Agreement or any of the other Loan Documents be amended or otherwise modified in a manner which would require the consent of all of the Lenders and such amendment or other modification is agreed to by the Borrower, the Required Lenders and the Administrative Agent, then, with the consent of the Borrower, the Administrative Agent and the Required Lenders, this Agreement or such other Loan Document may be amended without the consent of


 
the Lender or Lenders who are unwilling to agree to such amendment or other modification (each, a “Minority Lender”), to provide for: (i) the termination of the Commitment of each such Minority Lender; (ii) the assumption of the Loans and Commitment of each such Minority Lender by one or more Replacement Lenders pursuant to the provisions of Section 2.23; and (iii) the payment of all interest, fees and other obligations payable or accrued in favor of each Minority Lender and such other modifications to this Agreement or to such Loan Documents as the Borrower, the Administrative Agent and the Required Lenders may determine to be appropriate in connection therewith. (c) Notwithstanding any provision herein to the contrary, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrower, (i) to add one or more additional credit or term loan facilities to this Agreement and to permit all such additional extensions of credit and all related obligations and liabilities arising in connection therewith and from time to time outstanding thereunder to share ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed appropriate by the Administrative Agent and approved by the Required Lenders, the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders and Majority Revolving Lenders or Majority Term Lenders, as applicable. (d) Notwithstanding any other provision, no consent of any Lender (or other Secured Party other than the Administrative Agent) shall be required to effectuate any amendment to implement any Incremental Facility permitted by Section 2.26 or to effect an alternate interest rate in a manner consistent with Section 2.17. (e) Notwithstanding any provision herein to the contrary, any Cash Management Agreement may be amended or otherwise modified by the parties thereto in accordance with the terms thereof without the consent of the Administrative Agent or any Lender. (f) Notwithstanding any provision herein or in any other Loan Document to the contrary, no Cash Management Bank and no Qualified Counterparty shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of Cash Management Services or Specified Swap Agreements or Obligations owing thereunder, nor shall the consent of any such Cash Management Bank or Qualified Counterparty, as applicable, be required for any matter, other than in their capacities as Lenders, to the extent applicable. (g) The Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the Loan Documents to cure any omission, mistake or defect. 10.2 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by facsimile or electronic mail), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the case of facsimile or electronic mail notice, when received, addressed as follows in the case of the Borrower and the Administrative Agent,


 
with a copy to: Doug Linebarger, Chief Legal Officer (same address as above) Email: dlinebarger@alkamitech.com and Kimberly C. MacLeod Hunton Andrews Kurth LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219 Email: kmacleod@HuntonAK.com Borrower: Administrative Agent: Alkami Technology, Inc. 5601 Granite Parkway, Suite 120 Plano, TX 75024 Attention: Bryan Hill, Chief Financial Officer Facsimile No.: (972) 201-9028 E-Mail: bhill@alkamitech.com Silicon Valley Bank, a division of First-Citizens Bank & Trust Company 1200 17th Street, 16th Floor Denver, CO 80202 Attention: John Lapides E-Mail: jlapides@svb.com With a copy (which shall not constitute notice) to: Morrison & Foerster LLP 200 Clarendon Street Boston, Massachusetts 02116 Attention: Charles W. Stavros, Esq. E-Mail: cstavros@mofo.com and as set forth in an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified by the respective parties hereto: provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not be effective until received. (a) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including email and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the


 
applicable Lender. The Administrative Agent or any Loan Party may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgment); and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its email address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient. (b) Any party hereto may change its address, email or facsimile number for notices and other communications hereunder by notice to the other parties hereto. (c) (i) Each Loan Party agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Issuing Lender and the other Lenders by posting the Communications on the Platform. (ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower or the other Loan Parties, any Lender or any other Person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or the Issuing Lender by means of electronic communications pursuant to this Section, including through the Platform. 10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 10.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder.


 
10.5 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the Facilities, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents, or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued or participated in hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender (including the Issuing Lender), and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender 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 actual or alleged presence or release of Materials of Environmental Concern on or from any property owned or operated by the Group Members, or any Environmental Liability related in any way to the Group Members, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; 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 court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction; and provided further, that neither Borrower or any other Loan Party shall have any liability to any Indemnitee hereunder for indirect, special, incidental or consequential damages. This Section 10.5(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails indefeasibly to pay any amount required under paragraph (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the Issuing Lender, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent


 
(or any such sub-agent), the Issuing Lender, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that with respect to such unpaid amounts owed to the Issuing Lender or the Swingline Lender solely in its capacity as such, only the Revolving Lenders shall be required to pay such unpaid amounts, such payment to be made severally among them based on such Revolving Lenders’ Revolving Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); provided further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the Issuing Lender or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the Issuing Lender or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Sections 2.1, 2.4 and 2.20(e). (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Borrower and each other Loan Party shall not assert, and hereby waives, 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 referred to in paragraph (b) above 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. (e) Payments. All amounts due under this Section shall be payable promptly after demand therefor. (f) Survival. Each party’s obligations under this Section shall survive the Discharge of Obligations. 10.6 Successors and Assigns; Participations and Assignments. (a) Successors and Assigns Generally. 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 (which, for purposes of this Section 10.6, shall include any Cash Management Bank and any Qualified Counterparty, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of Section 10.6(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.6(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). 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, Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.


 
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (in each case with respect to any Facility) any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $1,000,000, in the case of any assignment in respect of the Revolving Facility, or $5,000,000, in the case of any assignment in respect of the Term Loan Facility, unless each of the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis. (iii) Required Consents. No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section and, in addition: (A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment, or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof, and provided, further, that the Borrower’s consent shall not be required during the primary syndication of the Facilities; (B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) the Revolving Facility or any unfunded Commitments with respect to the Term Loan Facility if such assignment is to a Person that is not a Lender with a Commitment in respect of such Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or (ii) any Term Loans to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund; and


 
(C) the consent of the Issuing Lender and the Swingline Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Facility. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent any such administrative questionnaire as the Administrative Agent may request. (v) No Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to 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). (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust established for, or owned and operated for the primary benefit of, a natural Person). (vii) Certain Additional Payments. 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, the Issuing Lender, the Swingline Lender and each 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 and Swingline Loans in accordance with its Revolving Percentage. 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 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. Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, 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 Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 2.19, 2.20, 2.21 and 10.5 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 paragraph (d) of this Section. (c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in California a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent 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. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a holding company, investment vehicle or trust established for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent, the Issuing Lender 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. For the avoidance of doubt, each Lender shall be responsible for the indemnities under Sections 2.20(e) and 9.7 with respect to any payments made by such Lender to its Participant(s). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver which affects such Participant and for which the consent of such Lender is required (as described in Section 10.1). The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered by such Participant to the Lender granting such participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.6(b); provided that such Participant (A) agrees to be subject to the provisions of Sections 2.23 as if it were an assignee under Section 10.6(b); and (B) shall not be entitled to receive any greater payment under Sections 2.19 or 2.20, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower's request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.23 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.18(k) as though it were a Lender. 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 stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments,


 
Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender 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. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (e) Certain Pledges. 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; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (f) Notes. The Borrower, upon receipt by the Borrower of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in Section 10.6. (g) Representations and Warranties of Lenders. Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Commitments or Loans, as the case may be, represents and warrants as of the Closing Date or as of the effective date of the applicable Assignment and Assumption that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments, loans or investments such as the Commitments and Loans; and (iii) it will make or invest in its Commitments and Loans for its own account in the ordinary course of its business and without a view to distribution of such Commitments and Loans within the meaning of the Securities Act or the Exchange Act, or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments and Loans or any interests therein shall at all times remain within its exclusive control). 10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if any Lender (a “Benefitted Lender”) shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8.2, receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. (b) Upon the occurrence and during the continuance of any Event of Default, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, without prior notice to any Loan Party, any such notice being expressly waived by each Loan Party, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or


 
demand, provisional or final), in any currency, at any time held or owing, and any other credits, indebtedness, claims or obligations, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender, its Affiliates or any branch or agency thereof to or for the credit or the account of any Loan Party, against any and all of the obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or its Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender or any of its Affiliates 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 2.23 and, pending such payment, shall be segregated by such Defaulting Lender or Affiliate thereof 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 or Affiliate thereof as to which it exercised such right of setoff. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application made by such Lender or any of its Affiliates; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender and its Affiliates under this Section 10.7 are in addition to other rights and remedies (including other rights of set-off) which such Lender or its Affiliates may have. 10.8 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the Discharge of Obligations. 10.9 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.


 
10.10 Counterparts; Electronic Execution of Assignments. (a) This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic mail transmission shall be effective as delivery of an original executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent. (b) The words “execution,” “signed,” “signature,” and words of like import in any Loan Document or any other written instrument delivered pursuant thereto shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. 10.11 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.11, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited under or in connection with any Insolvency Proceeding, as determined in good faith by the Administrative Agent or the Issuing Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited. 10.12 Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the other Loan Parties, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents. 10.13 GOVERNING LAW. THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, AND ANY CLAIM, CONTROVERSY, DISPUTE, CAUSE OF ACTION, OR PROCEEDING (WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE) BASED UPON, ARISING OUT OF, CONNECTED WITH, OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO AND THERETO, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAW RULES) OF THE STATE OF NEW YORK. This Section 10.13 shall survive the Discharge of Obligations. 10.14 Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally: (a) agrees that all disputes, controversies, claims, actions and other proceedings involving, directly or indirectly, any matter in any way arising out of, related to, or connected with, this


 
Agreement, any other Loan Document, any contemplated transactions related hereto or thereto, or the relationship between any Loan Party, on the one hand, and the Administrative Agent or any Lender or any other Secured Party, on the other hand, and any and all other claims of any Group Member against the Administrative Agent or any Lender or any other Secured Party of any kind, shall be brought only in a state court located in the Borough of Manhattan, or in a federal court sitting in the Borough of Manhattan; provided that nothing in this Agreement shall be deemed to operate to preclude the Administrative Agent or any Lender or any other Secured Party from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Administrative Agent or such Lender or any other Secured Party. The Borrower, on behalf of itself and each other Loan Party, (i) expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court and to the selection of any referee referred to below, (ii) hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court, and (iii) agrees that it shall not file any motion or other application seeking to change the venue of any such suit or other action. The Borrower, on behalf of itself and each other Loan Party, hereby waives personal service of any summons, complaints, and other process issued in any such action or suit and agrees that service of any such summons, complaints, and other process may be made by registered or certified mail addressed to the Borrower at the address set forth in Section 10.2 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of the Borrower’s actual receipt thereof or three days after deposit in the U.S. mails, proper postage prepaid; (b) WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ITS RIGHT TO A JURY TRIAL OF ANY CLAIM, CAUSE OF ACTION, OR PROCEEDING (WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE) BASED UPON, ARISING OUT OF, CONNECTED WITH, OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY AND THEREBY, AMONG ANY OF THE PARTIES HERETO AND THERETO. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. THE BORROWER HAS REVIEWED THIS WAIVER WITH ITS COUNSEL; and (c) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages. This Section 10.14 shall survive the Discharge of Obligations. 10.15 Acknowledgements. The Borrower hereby acknowledges that: (a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents; (b) in connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower, on behalf of each Group Member, acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and any Affiliate thereof, and the Lenders and any Affiliate thereof are arm’s-length commercial transactions between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Lenders and their respective applicable Affiliates (collectively, solely for purposes of this Section, the “Lenders”), on the other hand, (B) each of the Borrower and the other Loan


 
Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor or fiduciary for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (B) no Lender has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Lenders may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and no Lender has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any claims that it may have against the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated hereby; and (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Group Members and the Lenders. 10.16 Releases of Guarantees and Liens. (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by Section 10.1) to take any action requested by the Borrower having the effect of releasing any Collateral or guarantee obligations (1) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 10.1 or (2) under the circumstances described in Section 10.16(b) below. (b) Upon the Discharge of Obligations, the Collateral (other than any cash collateral securing any Specified Swap Agreements, any Cash Management Services or outstanding Letters of Credit) shall be released from the Liens created by the Security Documents and Cash Management Agreements (other than any Cash Management Agreements used to Cash Collateralize any Obligations arising in connection with Cash Management Agreements), and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party under the Security Documents and Cash Management Agreements (other than any Cash Management Agreements used to Cash Collateralize any Obligations arising in connection with Cash Management Agreements) shall terminate, all without delivery of any instrument or performance of any act by any Person. 10.17 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and each Lender agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and in accordance with all Requirements of Law); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights


 
hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder; (g) on a confidential basis to (i) any rating agency in connection with rating any Group Member or the Facilities or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities; (h) with the consent of the Borrower; or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than the Borrower. 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; and (B) 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 at its own expense. Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee, representative, or other agent of any party to this Agreement) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure. However, any such information relating to the tax treatment or tax structure is required to be kept confidential to the extent necessary to comply with any applicable federal or state securities laws, rules, and regulations. For purposes of this Section, “Information” means all information received from the Group Members relating to the Group Members or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure by the Group Members; provided that, in the case of information received from the Group Members after the date hereof, such information is clearly identified at the time of delivery as confidential or if not so marked, is of a character that a reasonable person would know that such information is confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. 10.18 Automatic Debits. With respect to any principal, interest, fee, or any other cost or expense (including attorney costs of the Administrative Agent or any Lender payable by the Borrower hereunder) due and payable to the Administrative Agent or any Lender under the Loan Documents, the Borrower hereby irrevocably authorizes the Administrative Agent, upon prior notice to the Borrower (with email sufficient for such purpose), to debit any deposit account of the Borrower maintained with the Administrative Agent in an amount such that the aggregate amount debited from all such deposit accounts does not exceed such principal, interest, fee or other cost or expense; provided that no such notice shall be required for debit of any scheduled or recurring fees set forth in this Agreement. If there are insufficient funds in such deposit accounts to cover the amount then due, such debits will be reversed


 
(in whole or in part, in the Administrative Agent’s sole discretion) and such amount not debited shall be deemed to be unpaid. No such debit under this Section 10.18 shall be deemed a set-off. 10.19 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 and each other Loan Party in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under any other Loan Document 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 Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, 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 or any Lender from the Borrower or any other Loan Party in the Agreement Currency, the Borrower and each other Loan Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Borrower or other Loan Party, as applicable (or to any other Person who may be entitled thereto under applicable law). 10.20 Patriot Act; Other Regulations. Each Lender and the Administrative Agent (for itself and not on behalf of any other party) hereby notifies the Borrower and each other Loan Party that, pursuant to the requirements of “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and 31 C.F.R. § 1010.230, it is required to obtain, verify and record information that identifies each Loan Party and certain related parties thereto, which information includes the names and addresses and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party and certain of their beneficial owners and other officers in accordance with the Patriot Act and 31 C.F.R. § 1010.230. The Borrower and each other Loan Party will, and will cause each of their respective Subsidiaries to, provide, to the extent commercially reasonable or required by any Requirement of Law, such information and documents and take such actions as are reasonably requested by the Administrative Agent or any Lender to assist the Administrative Agent and the Lenders in maintaining compliance with “know your customer” requirements under the PATRIOT Act, 31 C.F.R. § 1010.230 or other applicable anti-money laundering laws. 10.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institutions 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: (a) 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 party hereto that is an Affected Financial Institution;


 
(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 Capital Stock 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 Capital Stock 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 (iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority. 10.22 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements 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. (b) As used in this Section 10.22, the following terms have the following meanings: “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “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). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). 10.23 Amendment and Restatement of Existing Credit Agreement; Acknowledgment of Prior Obligations; No Novation. (a) The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 5.1, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. Upon the effectiveness of this Agreement, (A) the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit exposure under the Existing Credit Agreement as are necessary in order to ensure that each such Lender’s Aggregate Exposure and outstanding Loans hereunder reflects such Lender’s Aggregate Exposure Percentage of the outstanding Aggregate Exposure on the Closing Date, and (B) the Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurodollar Loans (as defined in the Existing Credit Agreement) (including the “Eurodollar Loans” under the Existing Credit Agreement) and such reallocation described above, in each case on the terms and in the manner set forth herein. (b) Each of the Borrower, on behalf of itself and each other Loan Party, (i) acknowledges and agrees that the prior grant or grants of security interests in favor of any of the Administrative Agent or any other Secured Party (as defined in the Existing Credit Agreement) in its properties and assets, under each “Loan Document” as defined in the Existing Credit Agreement (the “Original Loan Documents”) to which it is a party shall be in respect of the Obligations of such Person under this Agreement and the other Loan Documents; (ii) reaffirms (A) all of the Obligations (as defined in the Existing Credit Agreement) owing to the Administrative Agent and the other Secured Parties (as defined in the Existing Credit Agreement), and (B) all prior or concurrent grants of security interests in favor of any of the Administrative Agent or any other Secured Party (as defined in the Existing Credit Agreement) under each Original Loan Document and each Loan Document; and (iii) agrees that, except as expressly amended hereby or unless being amended and restated concurrently herewith, each of the Original Loan Documents to which it is a party (including, without limitation, the Guarantee and Collateral Agreement) is and shall remain in full force and effect. The Borrower hereby confirms and agrees that all outstanding principal, interest and fees and other “Obligations” (as defined in the Existing Credit Agreement) under the Existing Credit Agreement immediately prior to the Closing Date shall, to the extent not paid on the Closing Date, from and after the Closing Date, be, without duplication, Obligations pursuant to this Agreement and the other Loan Documents as in effect from time to time, shall accrue interest thereon as specified in this Agreement, and shall be secured by the Loan Documents. This Agreement does not extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release the obligations or the Liens or priority of any Liens or any other security therefor. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Credit Agreement, the other Original Loan Documents or instruments securing the same, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith. Nothing expressed or implied in this Agreement shall be construed as a release or other discharge of the Borrower or any Guarantor from any of its obligations


 
or liabilities under the Existing Credit Agreement or any of the security agreements, pledge agreements, mortgages, guaranties or other loan documents executed in connection therewith. The Borrower, on behalf of itself and each other Loan Party, hereby (i) confirms and agrees that each Original Loan Document to which it is a party that is not being amended and restated concurrently herewith is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that on and after the Closing Date, all references in any such Original Loan Document to “the Credit Agreement,” “thereto,” “thereof,” “thereunder” or words of like import referring to the Existing Credit Agreement shall mean the Existing Credit Agreement as amended and restated by this Agreement; and (ii) confirms and agrees that to the extent that any such Original Loan Document purports to assign or pledge to any Secured Party a security interest in or Lien on, any collateral as security for all or any portion of any of the Obligations of the Borrower or any other Loan Party, as the case may be, from time to time existing in respect of the Existing Credit Agreement or the Original Loan Document, such pledge or assignment or grant of the security interest or Lien is hereby ratified and confirmed in all respects with respect to this Agreement and the Loan Documents. [Remainder of page left blank intentionally] 124521.0000006 DMS 302536575v3124521.0000006 DMS 309966973v12


 
sf-6292949.7 Annex B: Schedule 1.1A of the Credit Agreement [See Attached]


 
sf-6292949.7 SCHEDULE 1.1A COMMITMENTS AND AGGREGATE EXPOSURE PERCENTAGES TERM COMMITMENTS1 Lender Term Commitment Term Percentage Silicon Valley Bank, a division of First-Citizens Bank & Trust Company $34,000,000.00 40.000000000% Comerica Bank $27,200,000.00 32.000000000% Canadian Imperial Bank of Commerce $23,800,000.00 28.000000000% Total $85,000,000.00 100.000000000% REVOLVING COMMITMENTS Lender Revolving Commitment Revolving Percentage Silicon Valley Bank, a division of First-Citizens Bank & Trust Company $85,000,000.00 37.788888888% Canadian Imperial Bank of Commerce $40,000,000.00 17.788888888% Citibank, N.A. $50,000,000.00 22.222222222% JPMorgan Chase Bank, N.A. $50,000,000.00 22.222222222% Total $225,000,000.00 100.000000000% L/C COMMITMENT Lender L/C Commitment L/C Percentage Silicon Valley Bank, a division of First-Citizens $3,777,777.78 37.788888888% 1 The Term Loans have been fully repaid as of the Third Amendment Effective Date.


 
sf-6292949.7 Lender L/C Commitment L/C Percentage Bank & Trust Company Canadian Imperial Bank of Commerce $1,777,777.78 17.788888888% Citibank, N.A. $2,222,222.22 22.222222222% JPMorgan Chase Bank, N.A. $2,222,222.22 22.222222222% Total $10,000,000.00 100.000000000% SWINGLINE COMMITMENT Lender Swingline Commitment Exposure Percentage Silicon Valley Bank, a division of First-Citizens Bank & Trust Company $7,500,000.00 100.000000000% Total $7,500,000.00 100.000000000%


 
EX-99.1 4 exhibit991-earningsrelease.htm EX-99.1 Document

Exhibit 99.1

Alkami Announces Fourth Quarter 2024 Financial Results
Alkami Today Also Announced Its Intent to Acquire MANTL

PLANO, Texas, February 27, 2025 (PRNewswire) -- Alkami Technology, Inc. (Nasdaq: ALKT) (“Alkami”), a leading cloud-based digital banking solutions provider for financial institutions (FIs) in the U.S., today announced results for its fourth quarter ending December 31, 2024.

Fourth Quarter 2024 Financial Highlights

•GAAP total revenue of $89.7 million, an increase of 25.6% compared to the year-ago quarter;
•GAAP gross margin of 59.3%, compared to 56.0% in the year-ago quarter;
•Non-GAAP gross margin of 63.1%, compared to 60.3% in the year-ago quarter;
•GAAP net loss of $(7.6) million, compared to $(12.7) million in the year-ago quarter; and
•Adjusted EBITDA of $10.2 million, compared to $3.1 million in the year-ago quarter.

Full Year 2024 Financial Highlights

•GAAP total revenue of $333.8 million, an increase of 26.1% compared to 2023;
•GAAP gross margin of 58.9%, compared to 54.4% in 2023;
•Non-GAAP gross margin of 62.7%, compared to 59.0% in 2023;
•GAAP net loss of $(40.8) million, compared to $(62.9) million in 2023; and
•Adjusted EBITDA of $26.9 million compared to $(1.6) million in 2023.

Alkami also announced today the signing of a definitive agreement to acquire Fin Technologies, Inc. (“MANTL”) for an enterprise value of $400 million, on a debt free, cash free basis and subject to customary purchase price adjustments, expected to be $7 million. Alkami plans to fund the acquisition with cash of approximately $380 million and restricted stock units issued to continuing MANTL employees with an estimated value of $13 million at transaction closing in replacement for unvested compensatory stock options. MANTL is the premier onboarding and account opening solution that allows financial institutions to acquire commercial, business and retail customers through any channel for virtually any deposit account type. MANTL combined with Alkami’s digital banking platform and marketing and analytic capabilities creates the industry leading digital sales and service platform for financial institutions.

Comments on the News

Alex Shootman, Chief Executive Officer, said, “In the fourth quarter, we continued to deliver strong growth and enhanced profitability, with revenue growth of over 25% and Adjusted EBITDA of $10.2 million. This capped a year that saw revenue growth of 26% and our first full year of positive Adjusted EBITDA. We also continued to expand our client portfolio, adding an additional seven banks in the fourth quarter.”

Shootman added, “We also announced today that we signed a definitive agreement to acquire MANTL, the premier onboarding and account opening solution. MANTL is unique in that it offers a multi-tenant, core-agnostic, single platform that enables FIs to support all channels in onboarding deposit accounts, including branch, call center and digital. With this acquisition, Alkami solidifies its position as the de facto digital sales and service platform in the industry, allowing FIs to onboard, engage, and grow their account base. This creates a tremendous opportunity for us to expand market share and generate cross sell within our client base, driving additional revenue growth and enhancing our competitive offering among financial institutions.”

Bryan Hill, Chief Financial Officer, said, “In 2024, we added 2.5 million registered users to our digital banking platform, ending the year with 20 million digital banking users. We exited 2024 with annual recurring revenue of $356 million, up 22% compared to December 31, 2023 and revenue per registered user of $17.81, up 7% compared to the year-ago quarter. Our remaining performance obligation reached $1.4 billion at December 31, 2024, providing substantial visibility into our future operating and financial performance. In addition, we are thrilled to welcome MANTL to the Alkami team. We believe MANTL will be accretive to Alkami’s overall revenue growth and gross margin expansion, and we expect the impact of the acquisition to be accretive to Adjusted EBITDA in 2026, allowing Alkami to meet or exceed its long-term financial targets.”

2025 Financial Outlook

The following statements are forward-looking, and actual results could differ materially depending on market conditions and the factors set forth under “Cautionary Statement Regarding Forward-Looking Statements.” Alkami’s financial outlook is based on current expectations, and includes the impact of the MANTL acquisition.

Alkami is providing guidance for its first quarter ending March 31, 2025 of:
•GAAP total revenue in the range of $93.5 million to $95.0 million;
•Adjusted EBITDA in the range of $9.5 million to $10.5 million.





Alkami is providing guidance for its fiscal year ending December 31, 2025 of:
•GAAP total revenue in the range of $440.0 million to $445.0 million;
•Adjusted EBITDA in the range of $47.0 million to $51.0 million.

The completion of the MANTL acquisition remains subject to certain standard conditions, and is expected to close on or before March 31, 2025. As such, starting in the second quarter of 2025 and included in Alkami’s full year guidance, Alkami expects MANTL to contribute revenue of approximately $30 million and an Adjusted EBITDA loss of $5 million to its 2025 full-year financial performance. Alkami expects MANTL's annual recurring revenue under contract at December 31, 2025 to be approximately $60 million, which represents a year-over-year growth rate of over 30%.

Conference Call Information
The Company will host a conference call at 5:00 p.m. ET today to discuss its financial results with investors. A live webcast of the event will be available on the Alkami investor relations website at investors.alkami.com. In addition, a live dial-in will be available domestically at 1-800-836-8184 and internationally at 1-646-357-8785, using passcode 39894. The webcast replay will be available on the Alkami investor relations website.

About Alkami
Alkami Technology, Inc. is a leading cloud-based digital banking solutions provider for financial institutions in the United States that enables clients to grow confidently, adapt quickly, and build thriving digital communities. Alkami helps clients transform through retail and business banking, digital account opening, payment security, and data and marketing solutions. To learn more, visit www.alkami.com.

Cautionary Statement Regarding Forward-Looking Statements
This press release contains “forward-looking” statements relating to Alkami Technology, Inc.’s strategy, goals, future focus areas, and expected, possible or assumed future results, including its future cash flows and its financial outlook. These forward-looking statements are based on management's beliefs and assumptions and on information currently available to management. Forward-looking statements include all statements that are not historical facts and may be identified by terms such as “expects,” “believes,” “plans,” or similar expressions and the negatives of those terms. These forward-looking statements involve known and unknown risks, uncertainties, and other factors that may cause actual results, performance or achievements to be materially different from any future results, performance or achievements, expressed or implied by the forward-looking statements. Factors that may materially affect such forward-looking statements include: Our limited operating history and history of operating losses; our ability to manage future growth; our ability to attract new clients and retain and expand existing clients’ use of our solutions; the unpredictable and time-consuming nature of our sales cycles; our ability to maintain, protect and enhance our brand; our ability to accurately predict the long-term rate of client subscription renewals or adoption of our solutions; our reliance on third-party software, content and services; our ability to effectively integrate our solutions with other systems used by our clients; intense competition in our industry; any downturn, consolidation or decrease in technology spend in the financial services industry, including as a result of recent closures of certain financial institutions and liquidity concerns at other financial institutions; our ability and the ability of third parties on which we rely to prevent and identify breaches of security measures (including cybersecurity) and resulting disruptions of our systems or operations and unauthorized access to client customer and other data; our ability to successfully integrate acquired companies or businesses; our ability to comply with regulatory and legal requirements and developments; our ability to attract and retain key employees; the political, economic and competitive conditions in the markets and jurisdictions where we operate; our ability to maintain, develop and protect our intellectual property; our ability to respond to evolving technological requirements to develop or acquire new and enhanced products that achieve market acceptance in a timely manner; our ability to estimate our expenses, future revenues, capital requirements, our needs for additional financing and our ability to obtain additional capital and other factors described in the Company’s filings with the Securities and Exchange Commission. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law.

Explanation of Non-GAAP Financial Measures and Key Business Metrics
The company reports its financial results in accordance with accounting principles generally accepted in the United States of America, or GAAP. However, the company believes that, in order to properly understand its short-term and long-term financial, operational and strategic trends, it may be helpful for investors to exclude certain non-cash or non-recurring items when used as a supplement to financial performance measures in accordance with GAAP. These items result from facts and circumstances that vary in both frequency and impact on continuing operations. The company also uses results of operations excluding such items to evaluate the operating performance of Alkami and compare it against prior periods, make operating decisions, determine executive compensation, and serve as a basis for long-term strategic planning. These non-GAAP financial measures provide the company with additional means to understand and evaluate the operating results and trends in its ongoing business by eliminating certain non-cash expenses and other items that Alkami believes might otherwise make comparisons of its ongoing business with prior periods more difficult, obscure trends in ongoing operations, reduce management’s ability to make useful forecasts, or obscure the ability to evaluate the effectiveness of certain business strategies and management incentive structures. In addition, the company also believes that investors and financial analysts find this information to be helpful in analyzing the company’s financial and operational performance and comparing this performance to the company’s peers and competitors.




The company defines “Non-GAAP Cost of Revenues” as cost of revenues, excluding (1) amortization and (2) stock-based compensation expense. The company believes that investors and financial analysts find this non-GAAP financial measure to be useful in analyzing the company’s financial and operational performance, comparing this performance to the company’s peers and competitors, and understanding the company’s ability to generate income from ongoing business operations.

The company defines “Non-GAAP Gross Margin” as gross profit, plus (1) amortization and (2) stock-based compensation expense, all divided by revenue. The company believes that investors and financial analysts find this non-GAAP financial measure to be useful in analyzing the company’s financial and operational performance, comparing this performance to the company’s peers and competitors, and understanding the company’s ability to generate income from ongoing business operations.

The company defines “Non-GAAP Research and Development Expense” as research and development expense, excluding stock-based compensation expense. The company believes that investors and financial analysts find this non-GAAP financial measure to be useful in analyzing the company’s financial and operational performance, comparing this performance to the company’s peers and competitors, and understanding the company’s ongoing expenditures related to product innovation.

The company defines “Non-GAAP Sales and Marketing Expense” as sales and marketing expense, excluding stock-based compensation expense. The company believes that investors and financial analysts find this non-GAAP financial measure to be useful in analyzing the company’s financial and operational performance, comparing this performance to the company’s peers and competitors, and understanding the company’s ongoing expenditures related to its sales and marketing strategies.

The company defines “Non-GAAP General and Administrative Expense” as general and administrative expense, excluding (1) stock-based compensation expense and (2) secondary offering costs. The company believes that investors and financial analysts find this non-GAAP financial measure to be useful in analyzing the company’s financial and operational performance, comparing this performance to the company’s peers and competitors, and understanding the company’s underlying expense structure to support corporate activities and processes.

The company defines “Non-GAAP Income (loss) before income taxes” as loss before income taxes, plus (1) gain on financial instruments, (2) amortization, (3) stock-based compensation expense, (4) secondary offering costs, and (5) acquisition-related expenses. The company believes that investors and financial analysts find this non-GAAP financial measure to be useful in analyzing the company’s financial and operational performance, comparing this performance to the company’s peers and competitors, and understanding the company’s ability to generate income from ongoing business operations.

The company defines “Adjusted EBITDA” as net loss plus (1) provision (benefit) for income taxes, (2) gain on financial instruments, (3) interest income, net, (4) depreciation and amortization (5) stock-based compensation expense, (6) secondary offering costs, (7) acquisition-related expenses, and (8) loss on extinguishment of debt. The company believes adjusted EBITDA provides investors and other users of our financial information consistency and comparability with our past financial performance and facilitates period-to-period comparisons of operations.

In addition, the Company also uses the following important operating metrics to evaluate its business:

The company defines “Annual Recurring Revenue (ARR)” by aggregating annualized recurring revenue related to SaaS subscription services recognized in the last month of the reporting period as well as the next 12 months of expected implementation services revenues in the last month of the reporting period. We believe ARR provides important information about our future revenue potential, our ability to acquire new clients, and our ability to maintain and expand our relationship with existing clients.

The company defines “Registered Users” as an individual or business related to an account holder of an FI client on our digital banking platform who has registered to use one or more of our solutions and has current access to use those solutions as of the last day of the reporting period presented. We price our digital banking platform based on the number of registered users, so as the number of registered users of our digital banking platform increases, our ARR grows. We believe growth in the number of registered users provides important information about our ability to expand market adoption of our digital banking platform and its associated software products, and therefore to grow revenues over time.




The company defines “Revenue per Registered User (RPU)” by dividing ARR for the reporting period by the number of registered users as of the last day of the reporting period. We believe RPU provides important information about our ability to grow the number of software products adopted by new clients over time, as well as our ability to expand the number of software products that our existing clients add to their contracts with us over time.

The company does not provide a reconciliation of our adjusted EBITDA outlook to GAAP net loss because certain significant information required for such reconciliation is not available without unreasonable efforts, including provision for income taxes, loss on financial instruments, stock-based compensation expense, and acquisition-related expenses, net, all of which may be significant.






ALKAMI TECHNOLOGY, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share data)
(UNAUDITED)
December 31, December 31,
2024 2023
Assets
Current assets
Cash and cash equivalents $ 94,359  $ 40,927 
Marketable securities 21,375  51,196 
Accounts receivable, net 38,739  35,499 
Deferred costs, current 13,207  10,329 
Prepaid expenses and other current assets 13,697  10,634 
Total current assets 181,377  148,585 
Property and equipment, net 22,075  16,946 
Right-of-use assets 14,565  15,754 
Deferred costs, net of current portion 37,178  30,734 
Intangibles, net 29,021  35,807 
Goodwill 148,050  148,050 
Other assets 5,011  3,949 
Total assets $ 437,277  $ 399,825 
Liabilities and Stockholders' Equity
Current liabilities
Accounts payable $ 6,129  $ 7,478 
Accrued liabilities 24,520  19,763 
Deferred revenues, current portion 13,578  10,984 
Lease liabilities, current portion 1,343  1,205 
Total current liabilities 45,570  39,430 
Deferred revenues, net of current portion 15,526  15,384 
Deferred income taxes 1,822  1,713 
Lease liabilities, net of current portion 17,109  18,052 
Other non-current liabilities 220  305 
Total liabilities 80,247  74,884 
Stockholders’ Equity
Preferred stock, $0.001 par value, 10,000,000 shares authorized and 0 shares issued and outstanding as of December 31, 2024 and 2023
—  — 
Common stock, $0.001 par value, 500,000,000 shares authorized; and 102,088,783 and 96,722,098 shares issued and outstanding as of December 31, 2024 and 2023, respectively
102  97 
Additional paid-in capital 833,129  760,210 
Accumulated deficit (476,201) (435,366)
Total stockholders’ equity 357,030  324,941 
Total liabilities and stockholders' equity $ 437,277  $ 399,825 



ALKAMI TECHNOLOGY, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except share and per share data)
(UNAUDITED)
Three months ended December 31,
Year ended December 31,
2024 2023 2024 2023
Revenues $ 89,656  $ 71,369  $ 333,849  $ 264,831 
Cost of revenues(1)
36,446  31,420  137,219  120,720 
Gross profit 53,210  39,949  196,630  144,111 
Operating expenses:
Research and development 25,349  21,491  96,211  84,661 
Sales and marketing 14,552  11,863  59,765  48,557 
General and administrative 21,576  19,292  83,650  72,900 
Acquisition-related expenses —  43  195  263 
Amortization of acquired intangibles 359  359  1,435  1,435 
Total operating expenses 61,836  53,048  241,256  207,816 
Loss from operations (8,626) (13,099) (44,626) (63,705)
Non-operating income (expense):
Interest income 1,070  2,273  4,560  8,095 
Interest expense (134) (1,870) (461) (7,384)
Gain on financial instruments —  113  —  534 
Loss on extinguishment of debt —  (409) —  (409)
Loss before income taxes (7,690) (12,992) (40,527) (62,869)
Provision (benefit) for income taxes (47) (279) 308  44 
Net loss $ (7,643) $ (12,713) $ (40,835) $ (62,913)
Net loss per share attributable to common stockholders:
Basic and diluted $ (0.08) $ (0.13) $ (0.41) $ (0.67)
Weighted average number of shares of common stock outstanding:
Basic and diluted 101,057,260  95,871,058  98,892,692  94,080,797 

(1) Includes amortization of acquired technology of $1.3 million and $1.4 million for the three months ended December 31, 2024 and 2023, respectively, and $5.4 million for both the years ended December 31, 2024 and 2023.















ALKAMI TECHNOLOGY, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(UNAUDITED)
Year ended December 31,
2024 2023
Cash flows from operating activities:
Net loss
$ (40,835) $ (62,913)
Adjustments to reconcile net loss to net cash provide by (used in) operating activities:
Depreciation and amortization expense 10,508  10,631 
Accrued interest on marketable securities, net (1,075) (3,231)
Stock-based compensation expense 59,437  51,231 
Amortization of debt issuance costs 210  138 
Gain on financial instruments —  (532)
Loss on extinguishment of debt —  409 
Gain on lease modification —  (375)
Deferred taxes 109  (32)
Changes in operating assets and liabilities:
Accounts receivable (3,240) (9,253)
Prepaid expenses and other assets (3,972) 425 
Accounts payable and accrued liabilities 3,322  91 
Deferred costs (8,603) (7,720)
Deferred revenues 2,736  3,629 
Net cash provided by (used in) operating activities 18,597  (17,502)
Cash flows from investing activities:
Purchase of marketable securities (40,416) (140,816)
Proceeds from sales, maturities, and redemptions of marketable securities 71,312  181,019 
Purchases of property and equipment (1,195) (1,058)
Capitalized software development costs (6,660) (5,234)
Net cash provided by investing activities 23,041  33,911 
Cash flows from financing activities:
Principal payments on debt (85,000)
Payment of holdback funds from acquisition (3,600)
Payments for taxes related to net settlement of equity awards (12,820) (15,985)
Proceeds from stock option exercises 20,241  12,983 
Proceeds from Employee Stock Purchase Plan issuances 4,736  4,124 
Debt issuance costs paid (363) (341)
Net cash provided by (used in) financing activities 11,794  (87,819)
Net increase (decrease) in cash and cash equivalents and restricted cash 53,432  (71,410)
Cash and cash equivalents and restricted cash, beginning of period 40,927  112,337 
Cash and cash equivalents and restricted cash, end of period $ 94,359  $ 40,927 






ALKAMI TECHNOLOGY, INC.
RECONCILIATION OF GAAP TO NON-GAAP MEASURES
(In thousands, except per share data)
(UNAUDITED)
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP total revenues $ 89,656  $ 71,369  $ 333,849  $ 264,831 
December 31,
2024 2023
Annual Recurring Revenue (ARR) $ 355,874  $ 291,049 
Registered Users 19,984  17,502 
Revenue per Registered User (RPU) $ 17.81  $ 16.63 
Non-GAAP Cost of Revenues
Set forth below is a presentation of the company’s “Non-GAAP Cost of Revenues.” Please reference the “Explanation of Non-GAAP Measures” section.
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP cost of revenues $ 36,446  $ 31,420  $ 137,219  $ 120,720 
Amortization (1,926) (1,656) (7,389) (6,579)
Stock-based compensation expense (1,434) (1,444) (5,366) (5,584)
Non-GAAP cost of revenues $ 33,086  $ 28,320  $ 124,464  $ 108,557 
Non-GAAP Gross Margin
Set forth below is a presentation of the company’s “Non-GAAP Gross Margin.” Please reference the “Explanation of Non-GAAP Measures” section.
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP gross margin 59.3  % 56.0  % 58.9  % 54.4  %
Amortization 2.2  % 2.3  % 2.2  % 2.5  %
Stock-based compensation expense 1.6  % 2.0  % 1.6  % 2.1  %
Non-GAAP gross margin 63.1  % 60.3  % 62.7  % 59.0  %
Non-GAAP Research and Development Expense
Set forth below is a presentation of the company’s “Non-GAAP Research and Development Expense.” Please reference the “Explanation of Non-GAAP Measures” section.
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP research and development expense $ 25,349  $ 21,491  $ 96,211  $ 84,661 
Stock-based compensation expense (4,533) (4,141) (17,279) (15,995)
Non-GAAP research and development expense $ 20,816  $ 17,350  $ 78,932  $ 68,666 



Non-GAAP Sales and Marketing Expense
Set forth below is a presentation of the company’s “Non-GAAP Sales and Marketing Expense.” Please reference the “Explanation of Non-GAAP Measures” section.
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP sales and marketing expense $ 14,552  $ 11,863  $ 59,765  $ 48,557 
Stock-based compensation expense (2,400) (1,911) (9,049) (7,220)
Non-GAAP sales and marketing expense $ 12,152  $ 9,952  $ 50,716  $ 41,337 
Non-GAAP General and Administrative Expense
Set forth below is a presentation of the company’s “Non-GAAP General and Administrative Expense.” Please reference the “Explanation of Non-GAAP Measures” section.
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP general and administrative expense $ 21,576  $ 19,292  $ 83,650  $ 72,900 
Stock-based compensation expense (7,248) (5,821) (27,743) (22,432)
Secondary offering costs (527) —  (1,337) — 
Non-GAAP general and administrative expense $ 13,801  $ 13,471  $ 54,570  $ 50,468 
Non-GAAP Income (Loss) Before Income Taxes
Set forth below is a presentation of the company’s “Non-GAAP Income (Loss) Before Income Taxes.” Please reference the “Explanation of Non-GAAP Measures” section.
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP loss before income taxes $ (7,690) $ (12,992) $ (40,527) $ (62,869)
Gain on financial instruments —  (113) —  (534)
Amortization 2,285  2,015  8,824  8,014 
Stock-based compensation expense 15,615  13,317  59,437  51,231 
Secondary offering costs 527  —  1,337  — 
Acquisition-related expenses —  43  195  263 
Non-GAAP Income (loss) before income taxes $ 10,737  $ 2,270  $ 29,266  $ (3,895)



Adjusted EBITDA
Set forth below is a presentation of the company’s “Adjusted EBITDA.” Please reference the “Explanation of Non-GAAP Measures” section.
Three Months Ended Year Ended
December 31, December 31,
2024 2023 2024 2023
GAAP net loss $ (7,643) $ (12,713) $ (40,835) $ (62,913)
Provision (benefit) for income taxes (47) (279) 308  44 
Gain on financial instruments —  (113) —  (534)
Interest income, net (936) (403) (4,099) (711)
Depreciation and amortization 2,654  2,790  10,508  10,631 
Stock-based compensation expense 15,615  13,317  59,437  51,231 
Secondary offering costs 527  —  1,337  — 
Acquisition-related expenses —  43  195  263 
Loss on extinguishment of debt —  409  —  409 
Adjusted EBITDA $ 10,170  $ 3,051  $ 26,851  $ (1,580)

Investor Relations Contact
Steve Calk
ir@alkami.com

Media Relations Contacts
Marla Pieton
marla.pieton@alkami.com

Valerie Kerner
alkami@fullyvested.com




EX-99.2 5 investorpresentationq420.htm EX-99.2 investorpresentationq420
Alkami Technology, Inc. Proprietary Information. Alkami Technology Fourth Quarter 2024


 
2 © A lk am i T ec h n o lo gy , I n c. This presentation contains “forward-looking” statements relating to Alkami Technology, Inc.’s strategy, goals, future focus areas, and expected, possible or assumed future results, including its future cash flows and its financial outlook. These forward-looking statements are based on management's beliefs and assumptions and on information currently available to management. Forward-looking statements include all statements that are not historical facts and may be identified by terms such as “expects,” “believes,” “plans,” or similar expressions and the negatives of those terms. These forward-looking statements involve known and unknown risks, uncertainties, and other factors that may cause actual results, performance or achievements to be materially different from any future results, performance or achievements, expressed or implied by the forward-looking statements. Factors that may materially affect such forward-looking statements include: Our limited operating history and history of operating losses; our ability to manage future growth; our ability to attract new clients and retain and expand existing clients’ use of our solutions; the unpredictable and time-consuming nature of our sales cycles; our ability to maintain, protect and enhance our brand; our ability to accurately predict the long-term rate of client subscription renewals or adoption of our solutions; our reliance on third-party software, content and services; our ability to effectively integrate our solutions with other systems used by our clients; intense competition in our industry; any downturn, consolidation or decrease in technology spend in the financial services industry, including as a result of recent closures of certain financial institutions and liquidity concerns at other financial institutions; our ability and the ability of third parties on which we rely to prevent and identify breaches of security measures (including cybersecurity) and resulting disruptions of our systems or operations and unauthorized access to client customer and other data; our ability to successfully integrate acquired companies or businesses; our ability to comply with regulatory and legal requirements and developments; our ability to attract and retain key employees; the political, economic and competitive conditions in the markets and jurisdictions where we operate; our ability to maintain, develop and protect our intellectual property; our ability to respond to evolving technological requirements to develop or acquire new and enhanced products that achieve market acceptance in a timely manner; our ability to estimate our expenses, future revenues, capital requirements, our needs for additional financing and our ability to obtain additional capital and other factors described in the Company’s filings with the Securities and Exchange Commission. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law. The company reports its financial results in accordance with accounting principles generally accepted in the United States of America, or GAAP. However, the company believes that, in order to properly understand its short-term and long-term financial, operational and strategic trends, it may be helpful for investors to exclude certain non-cash or non-recurring items when used as a supplement to financial performance measures in accordance with GAAP. These items result from facts and circumstances that vary in both frequency and impact on continuing operations. These non-GAAP financial measures provide the company with additional means to understand and evaluate the operating results and trends in its ongoing business by eliminating certain non-cash expenses and other items that Alkami believes might otherwise make comparisons of its ongoing business with prior periods more difficult, obscure trends in ongoing operations, reduce management’s ability to make useful forecasts, or obscure the ability to evaluate the effectiveness of certain business strategies and management incentive structures. In addition, the company also believes that investors and financial analysts find this information to be helpful in analyzing the company’s financial and operational performance and comparing this performance to the company’s peers and competitors. Cautionary Statement Regarding Forward-Looking Statements


 
3 © A lk am i T ec h n o lo gy , I n c. Combination Expected to Position Alkami as Premier Digital Banking Provider Expands Market Position Expected to position Alkami as a leader in digital sales and service platform Unlocks and expands TAM Onboard + Engage + Grow strategy drives competitive advantage Proven ability to leverage acquisitions (ACH Alert, Segmint) Stimulates GTM Strategy Minimal overlap with existing Alkami clients Significant Cross-Sell Opportunity Expected to be accretive to Alkami growth Attractive Financial Profile Commitment to empowering regional & community financial institutions Client as North Star Shared Culture of Innovation


 
4 © A lk am i T ec h n o lo gy , I n c. C o n fi d en ti al Alkami Digital Sales & Service Platform Digital Banking Engage users with an intuitive experience that simplifies self service Data & Marketing Leverage data from digital banking and core to target relevant products and services Onboarding & Account Opening Onboard new account holders and/or additional accounts for existing customers or members 50K demographic & psychographic tags and 12 AI predictive models to acquire customers and cross-sell products Awarded “Best Banking App” by Tearsheet in 2024 and the fastest-growing among all banks and credit unions combined Core-agnostic, omnichannel onboarding and account opening that supports virtually all deposit types, segments, and roles


 
5 © A lk am i T ec h n o lo gy , I n c. Partner Ecosystem Data & Marketing Security & Fraud Billing & Receivables Financial Wellness Card Management Commercial Services Extends Alkami’s Compelling Product and Customer Footprint Sales Channel Retail Account Opening Business Account Opening Customer LOS Business LOS Card Experience Money Movement ● The #1 retail banking platform ● Consumer and business ● Omnichannel account opening ● Accelerated entrance into LOS market Marketing Data Insights SHARED Strength ALKAMI Strength MANTL Strength Service Channel ● The best data and market platform ● Land and expand to grow relationships ● Driving higher attach rates, wallet share ● Enhancing customer stickiness Clients Client Type Banks Credit Unions Consumer / Retail Business / Corporate ● Proven playbook in CU market ● Accelerated push into bank market ● Consumer and business banking needs FinTech Partners Branch Manager


 
6 © A lk am i T ec h n o lo gy , I n c. Who We Are • Cloud-based digital banking platform serving U.S. financial institutions What We Do • Empower FIs to grow, drive user engagement and improve operational efficiency • Leverage broad product set enabling retail and commercial banking How We Do It • Powerful, scalable technology stack • Modern architecture, multi-tenant • Continuous integration, delivery and deployment Who We Serve • Community, regional and super-regional FIs Alkami Technology, Inc. We enable FIs to effectively compete with larger, more technologically advanced and well-resourced competitors Financial Institutions Digital Banking Consumer and Commercial Users FinTech Partners


 
7 © A lk am i T ec h n o lo gy , I n c. U.S. Digital Banking User Distribution Users in millions by asset range, including megabanks Source: FI Navigator, December 2023


 
8 © A lk am i T ec h n o lo gy , I n c. Alkami’s Addressable Market: User Characteristics 250M+ digital users, excluding megabanks Total market digital users growing 5-8% historically, driven by: ● Increasing number of accounts per customer ● Ease of new account opening via digital tools ● Demographics, including post-COVID shift to ex-urban areas, decline in unbanked and underbanked customers Digital user growth historically uncorrelated with contraction in branches or number of FIs Addressable Market = FIs with assets from $100M to $450B, representing 250M+ digital users Legacy Providers include Fiserv, FIS, JKHY, DI and other small or point solutions Sources: SEC filings, NCUA, FDIC, FI Navigator, Cornerstone Advisors and Alkami internal research Legacy Providers: 210M+ Historical User Growth: 5-8% Competitor: 24.7M User Growth: 12% Alkami: 20.0M User Growth: 14%


 
9 © A lk am i T ec h n o lo gy , I n c. Go-To-Market Cadence We focus on the top 2,500 FIs excluding the megabanks Industry average contract length is 5 years, translating to approximately 500 contracts up for renewal annually 500 Annual Renewals 2,500 Target Clients v 9,000+ FIs Over 9,000 FIs in the United States• Sales team drives outbound lead generation, cross selling and account management • Client success team supports retention and deepens the relationships with our clients Highly targeted annual renewal class allows us to focus sales resources Note: Excludes financial institutions with assets greater than $450B


 
10 © A lk am i T ec h n o lo gy , I n c. Alkami’s Addressable Market Growing healthy $14 billion TAM Total Addressable Market • 250M digital users x $58 ARPU • Digital users growing 5% to 8% annually • 30+ products today vs. 9 in 2015 Core Platform • 250M digital users x $35 ARPU • Existing client digital penetration of <80% expected to converge to near 100% DOA/LOS • Acquired Q3 2021 - Digital Account Opening and Unsecured Loan Origination ACH Alert • Acquired Q4 2020 - Fraud Prevention Segmint • Acquired Q2 2022 - Managed Marketing & AI 250M users represents FIs with assets between $100M and $450B Sources: NCUA, FDIC, FI Navigator, Cornerstone Advisors and Alkami internal research


 
11 © A lk am i T ec h n o lo gy , I n c. Multiple Levers Driving Growth ● Clients driven by new logo wins, historically among credit unions, with a growing presence among banks ● Registered users grow as we add new logos and as clients add users ● RPU driven by product penetration at initial sale and by add on sales, and is offset by volume discounts as existing clients add users Note: RPU and ARR include subscription and recurring implementation services revenue


 
12 © A lk am i T ec h n o lo gy , I n c. Alkami’s Digital Sales & Service Platform Onboard Engage Grow Guard Sales Service Digital Account Opening Marketing Data Insights Card Experience Customer Service Business Banking Financial Wellness Security & Fraud Protection Money Movement Extensibility Comprehensive digital banking to help FIs manage costs and remain competitive


 
13 © A lk am i T ec h n o lo gy , I n c. Product Strategy ● Lead with UX ● Deepen integrations with cores & third party systems ● Hyperfocus on Commercial Banking & DAO ● Data Integrity ● Integrating Flux, Segmint and Digital Banking further ● Monetizing data ● Streamlined, trackable and performant APIs ● Enhanced SDK to enable easier customization ● Developer Portal MVP Data Services Platform ServicesDigital Banking The Three Product Pillars


 
14 © A lk am i T ec h n o lo gy , I n c. How We Achieve Our Long-term Objectives Market Leadership Maintain Strong Credit Union Position Grow Bank Mindshare and Capabilities Drive Add-On Sales Scale and Continued Cost Discipline Continuous Product and Platform Improvement


 
Alkami Technology, Inc. Proprietary Information. Financial Overview


 
16 © A lk am i T ec h n o lo gy , I n c. Q4 2024 Financial Performance $M ● Q4’24 revenue growth of 26% driven by new clients, existing client user growth and ARPU growth ● GM expansion consistent with our plan to increase GM 200-300 bps per year through 2026 ● Adjusted EBITDA expansion driven by continued scale and efficiencies in Research & Development, Sales & Marketing and General & Administrative Note: Gross margin % on a non-GAAP basis


 
17 © A lk am i T ec h n o lo gy , I n c. Operating and Financial Highlights Q4 2024 $356M ARR Subscription Revenue Mix as of 12/31/24 96% Subscription Revenue 12/31/24 113% Net Dollar Retention Remaining Performance Obligation as of 12/31/24 $1.4B RPO Digital Banking Clients 272 Q4 2024 236 Q4 2023 Registered Users 20.0M17.5M Q4 2024Q4 2023 ● Signed 12 new digital banking platform clients in Q4 ● Implemented 8 clients in Q4, bringing digital platform client count to 272 ● 39 new clients in implementation backlog, representing 1.3M digital users ● Exited Q4 with 20.0M registered users, up 2.5M or 14%. Drivers: (i) FIs implemented in last twelve months represent 1.2M registered users and (ii) existing clients increased their registered users by 1.3M ● Increased ARR 22% to $356M ● Remaining performance obligation reached $1.4B representing 3.8 times live ARR and was 20% higher than a year ago ● LTM churn less than 1% vs long-term expected annual churn modeled at 2-3%


 
18 © A lk am i T ec h n o lo gy , I n c. Client Base Expansion 2020 151 177 199 236 37 57 67 89 2021 2022 2023 ARR growth driven by larger new logos and increased product penetration 272 104 2024 Total Digital Banking Platform Clients Clients with ARR > $1M


 
19 © A lk am i T ec h n o lo gy , I n c. Technology Demand and Product Expansion Drive ARR Cohort ARR Expansion Via User Growth and Cross-Sell Success ARR Expansion Drivers ● Long-term contracts ● Escalating contract minimums ● Gross client retention ● Growth in digital user adoption ● Product cross-sell As of 12/31/24


 
20 © A lk am i T ec h n o lo gy , I n c. Strong Historical Revenue Growth $M


 
21 © A lk am i T ec h n o lo gy , I n c. Gross Margin Expansion Driven by Scale and Efficiency $M


 
22 © A lk am i T ec h n o lo gy , I n c. Best-in-Class GTM Efficiency ● Long-term contract structure reduces annual GTM motion ● Alkami models annual client retention of 97% - 98% ● 2026E reflects continued growth in S&M spend related to bank market expansion and increased product depth ● Historical high sales team productivity and GTM efficiency; LTM increase in ARR to S&M expense of ~1.3x, among the best in SaaS ● Continued GTM efficiency driven by cross-sale success and upsell opportunities from user growth among our existing client base


 
23 © A lk am i T ec h n o lo gy , I n c. Clear Path to Manage Equity Dilution


 
24 © A lk am i T ec h n o lo gy , I n c. 2025 Financial Guidance


 
25 © A lk am i T ec h n o lo gy , I n c. Attractive Long-Term Profile Expect margin improvement through scale, product mix and operational efficiency


 
26 © A lk am i T ec h n o lo gy , I n c. Selected Historical Data 2021 2022 2023 2024 Digital banking platform clients 177 199 236 272 Growth % 12% 19% 15% Digital banking platform users (M) 12.4 14.5 17.5 20.0 Growth % 18% 20% 10% Live ARR ($M) $ 169.0 $ 226.1 $ 291.0 $ 355.9 Growth % 34% 29% 22% RPU $ 13.68 $ 15.55 $ 16.63 $ 17.81 Growth % 14% 7% 7% RPO ($M) $ 652 $ 893 $ 1,140 $ 1,366 Growth % 37% 28% 20% Notes: Segmint acquisition completed in Q2’22, driving one-time increase in RPU Q3’24 growth compares to Q3’23


 
27 © A lk am i T ec h n o lo gy , I n c. Non-GAAP Reconciliations ($000s)


 
28 © A lk am i T ec h n o lo gy , I n c. Non-GAAP Reconciliations ($000s)


 
29 © A lk am i T ec h n o lo gy , I n c. Non-GAAP Reconciliations ($000s)


 
EX-99.3 6 exhibit993mantlacquisition.htm EX-99.3 Document

Exhibit 99.3

Alkami to Acquire MANTL to Expand Account Opening Capabilities
Combination Creates Powerhouse Digital Sales and Service Platform
PLANO, Texas, February 27, 2025 (PRNewswire) -- Alkami Technology, Inc. (Nasdaq: ALKT) (“Alkami”), a leading cloud-based digital banking solutions provider for financial institutions in the U.S., today announced that it signed a definitive agreement to acquire Fin Technologies, Inc. (“MANTL”) for an enterprise value of $400 million, on a debt free, cash free basis and subject to customary purchase price adjustments, expected to be $7 million. Alkami plans to fund the acquisition with cash of approximately $380 million and restricted stock units issued to continuing MANTL employees with an estimated value of $13 million at transaction closing in replacement for unvested compensatory stock options.
MANTL is the premier account opening solution that allows financial institutions to acquire commercial, business and retail customers through any channel for virtually any deposit account type. MANTL, combined with Alkami’s Digital Banking and Data & Marketing Solutions, creates the industry-leading digital sales and services platform for financial institutions.
MANTL is unique in that it offers a multi-tenant, core-agnostic, single platform that enables financial institutions to support all channels in opening deposit accounts, including in-branch, call center and digital. MANTL automates the account opening process for virtually all deposit account types and roles, and transforms the process across a financial institution’s entire operation, including front-, middle-, and back-office. MANTL has 112 financial institution clients live on its platform ranging in size from $80 million to over $20 billion in assets.
Founded in 2016 by Nathaniel Harley and Benjamin Conant, MANTL has helped its clients raise over $31 billion in deposits while saving employees over 350,000 hours through automation and process transformation. Financial institutions that use MANTL experience a median retail account opening time of under five minutes, three times faster than the national benchmark. For business accounts, the median account opening experience is less than 10 minutes compared to an industry average of 3.5 hours. On average, 85% of applications receive an automated decision, vastly improving the efficiency of the financial institution.
With the acquisition of MANTL, Alkami solidifies its position as the de facto digital sales and service platform in the industry, allowing financial institutions to onboard, engage and grow their account base. Alkami is already a leader in engagement. Its digital banking solution was awarded “Best Banking App” by Tearsheet in 2024, and is the fastest-growing digital banking platform among all U.S. financial institutions. Alkami also has the premier solution for growth. Its data and marketing capabilities are purpose-built for financial institutions and provide 50,000 descriptive data tags and a dozen AI predictive models trained on analyzing more than 18 billion core transactions to improve cross-selling efforts, increase revenue and reduce churn. MANTL addresses one of the paramount concerns of financial institutions - onboarding new customers with speed, security and ease and deepening share-of-wallet with existing clients.



Alex Shootman, Alkami Chief Executive Officer said, “MANTL is a leader in account opening, allowing financial institutions to boost deposit growth with a higher application conversion, higher initial funding, and less fraud than competitive alternatives. And, when combined with Alkami’s strengths in digital banking and data and marketing, it completes the Alkami Digital Sales & Service Platform, our solution to help financial institutions land and expand the account holder relationship and create competitive advantage.”
Shootman continued, “This business combination creates a tremendous opportunity for Alkami to expand market share and generate cross sell within its client base, driving additional revenue growth and enhancing our competitive offering among financial institutions. We are thrilled to welcome the MANTL team to Alkami and look forward to leveraging our collective capabilities to serve financial institutions.”
“Since we founded MANTL nine years ago, our mission has remained constant: build technology that creates an equitable banking landscape where community financial institutions can not only survive but thrive," said Nathaniel Harley, MANTL co-founder and Chief Executive Officer. "We are excited to join the Alkami family, a move which sets MANTL on a path to deliver even greater value to our clients and the banking industry at large.”
Alkami plans to provide commentary on the acquisition during its fourth quarter 2024 earnings call on February 27, 2025. The completion of the MANTL acquisition remains subject to certain standard conditions, and is expected to close on or before March 31, 2025.
Conference Call
Alkami will host a conference call at 5:00 p.m. ET on February 27, 2025 to discuss its fourth quarter 2024 financial results and the MANTL acquisition with investors. A live webcast of the event will be available on the Alkami investor relations website at investors.alkami.com. In addition, a live dial-in will be available domestically at 1-800-836-8184 and internationally at 1-646-357-8785, using conference code 39894. The webcast replay will be available on the Alkami investor relations website.
About Alkami
Alkami Technology, Inc. is a leading cloud-based digital banking solutions provider for financial institutions in the United States that enables clients to grow confidently, adapt quickly, and build thriving digital communities. Alkami helps clients transform through retail and business banking, digital account opening, payment security, and data and marketing solutions. To learn more, visit www.alkami.com.
About MANTL
MANTL is a financial technology firm offering unified account origination technology that empowers banks and credit unions to seamlessly open deposit accounts on any banking channel in real time. MANTL Deposit Origination is among the fastest and most performant solutions on the market; consumers can open a new deposit account in under three minutes, businesses can open a new deposit account in under 10 minutes, and MANTL customers raise billions in core deposits each month. Founded in 2016, MANTL is a privately held company headquartered in New Jersey with the backing of prominent venture capital investors.



For more information, visit mantl.com or follow MANTL on LinkedIn.

Investor Relations Contact
Steve Calk
ir@alkami.com

Media Relations Contacts
Marla Pieton
marla.pieton@alkami.com

Valerie Kerner
alkami@fullyvested.com