0001828852False00018288522024-08-142024-08-14
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): August 14, 2024
Mondee Holdings, Inc.
(Exact name of registrant as specified in its charter)
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| Delaware | | 001-39943 | | 88-3292448 |
(State or other jurisdiction
of incorporation) | | (Commission
File Number) | | (I.R.S. Employer
Identification No.) |
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10800 Pecan Park Blvd Suite 400 Austin, Texas | | 78750 |
(Address of principal executive offices) | | (Zip Code) |
(866) 855-9630
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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| ☐ | Written communications pursuant to Rule 425 under the Securities Act |
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| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
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| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
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| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class | | Trading
Symbol(s) | | Name of each exchange
on which registered |
Class A common stock, $0.0001 par value per share | | MOND | | 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
On August 14, 2024, Mondee Holdings, Inc., a Delaware corporation (the “Company”), and certain of its subsidiaries, on the one hand, and TCW Asset Management Company, a Delaware limited liability company (the “Administrative Agent”), Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), and the lenders from time to time (the “Lenders”) party to the Financing Agreement (as defined herein), on the other hand, entered into that certain Amendment No. 21 (the “Amendment”) to that certain financing agreement, dated as of December 23, 2019 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the “Financing Agreement”).
The Amendment memorializes certain agreements made by the parties, including, among other items, the following: (1) extends the final maturity date of the term loan and line of credit under the Financing Agreement to August 31, 2025, and provides that the the maturity date will be automatically extended to June 30, 2028 if the Company executes a letter of credit facility in the aggregate face amount of $15.0 million (“L/C Facility”); (2) includes additional term loans with net proceeds of $5.0 million (“Net Incremental Financing”) contingent on the closing of the L/C Facility; (3) specifies the timing of payments of principal and interest on the Term Loan, waives a portion of the July 31, 2024 refinancing fees, and removes the requirement to pay refinancing fees on the outstanding term loan balance after July 31, 2024; (4) specifies additional amendment fees associated with the term loan; and (5) amends certain financial covenants of the term loan.
The foregoing summary of the Amendment is qualified in its entirety by reference to the Financing Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated by reference, and by reference to the Amendment, a copy of which is attached hereto as Exhibit 10.2 and incorporated herein by reference.
On August 14, 2024 (the “Closing Date”), the Company executed an amended and restated Certificate of Designation of Preferences, Rights and Limitations of Series A-1, Series A-2 and Series A-3 Preferred Stock (the “Preferred Amendment”). The Preferred Amendment will become effective upon the Company meeting certain contingency conditions, including the execution of the above-mentioned L/C Facility, which automatically triggers the funding of the Net Incremental Financing under the Amended Financing Agreement, and the payment of certain fees (the first date upon which all such conditions shall have been satisfied being hereinafter referred to as the “Preferred Amendment Effective Date”). Following the Preferred Amendment Effective Date, the Preferred Amendment extends the put right date on the Company’s preferred stock to December 31, 2028, and removes the provision that accelerates the put right date to March 31, 2026 in the event the Company does not achieve at least $50.0 million in Adjusted EBITDA for fiscal year 2025. The Preferred Amendment also includes quarterly financial covenants for the outstanding shares of preferred stock. In conjunction with the Preferred Amendment, the Company executed a warrant agreement (the “New Warrant Agreement”) for the issuance of common stock warrants for 5% of shares of common stock outstanding as of the Closing Date, plus another potential two allocations of 2.5% each on September 30, 2026 and September 30, 2027, respectively, and amended and restated the Amended and Restated Warrant Agreement, dated October 17, 2023 (the “Second Amended and Restated Warrant Agreement”). These common stock warrants are to be issued on specified dates on or after the Preferred Amendment Effective Date and at various strike prices, based on terms governing the warrant agreement. The Company also amended and restated the Second Amended and Restated Registration Rights Agreement to include rights for the holders of the New Warrants (the “Third Amended and Restated RRA”).
The foregoing summary of the Preferred Amendment is qualified in its entirety by reference to (1) the Preferred Amendment, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference, to (2) the Third Amended and Restated Certificate of Designation, a copy of which is attached hereto as Exhibit 3.2 and incorporated herein by reference, to (3) the Second Amended and Restated Warrant Agreement, a copy of which is attached hereto as Exhibit 4.1 and incorporated herein by reference, to (4) the New Warrant Agreement, a copy of which is attached hereto as Exhibit 4.2 and incorporated herein by reference, and (5) by reference to the Third Amended and Restated Registration Rights Agreement, a copy of which is attached hereto as Exhibit 4.3 and incorporated by reference herein.
Item 2.03 Creation of a Direct Financial Obligation of a Parent
The information contained in (or incorporated by reference into) Item 1.01 is incorporated into Item 2.03 by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
In connection with the approval of the Amendment to the Financing Agreement and the Preferred Amendment, the Board of Directors of the Company approved a grant of (i) up to 2,500,000 compensation units, to be paid in shares of Common Stock (“Management Compensation Units”) to be granted upon the final effectiveness of the Amendment, and (ii) up to 2,500,000 shares of Management Compensation Units to be granted upon the one-year anniversary of the Financing Extension, in each case to be allocated as directed by the Company's Chief Executive Officer.
Item 7.01 Regulation FD Disclosure
On August 14, 2024, the Company issued a press release announcing the executed Amendment and Preferred Amendment, which is furnished as Exhibit 99.1 and is incorporated herein by reference.
The information in this Item 7.01, is furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the registrant under the Exchange Act, regardless of any general incorporation language in such filings. This Report will not be deemed an admission as to the materiality of any information contained in this Item 7.01.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
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| Exhibit No. | | Description | |
| 3.1 | | | |
| 3.2† | | | |
| 4.1 | | | |
| 4.2 | | | |
| 4.3 | | | |
| 10.1† | | | |
| 10.2† | | | |
| 99.1 | | | |
| 104 | | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document) | |
| † | Certain confidential information (indicated by brackets and asterisks) has been omitted from this exhibit because it is both (i) not material and (ii) the type of information that the registrant treats as private or confidential | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| MONDEE HOLDINGS, INC. | |
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Dated: August 20, 2024 | | |
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| By: | /s/ Jesus Portillo | |
| | Name: Jesus Portillo Title: Chief Financial Officer | |
AMENDMENT
AND RESTATEMENT OF
SECOND AMENDED AND RESTATED CERTIFICATE OF DESIGNATION
AMENDMENT AND RESTATEMENT OF SECOND AMENDED AND RESTATED CERTIFICATE OF DESIGNATION, dated as of August 13, 2024 (this “Amendment”), to the Second Amended and Restated Certificate of Designation, dated as of December 14, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified, the “Certificate of Designation”, and the Certificate of Designation, as amended by this Amendment, the “Third A&R Certificate of Designation”), by and among Mondee Holdings, Inc., a Delaware corporation (the “Company”) and the Preferred Majority Holders.
WHEREAS, the Company desires to amend the Certificate of Designation to amend the terms for the Series A Preferred Stock;
WHEREAS, to induce the Preferred Majority Holders to enter into this Amendment, the Company desires to (A) enter into a warrant agreement substantially in the form of Exhibit B hereto (the “Replacement Warrant Agreement”), by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent (the “Agent”), pursuant to which the Company will issue and deliver to the holders of the Company’s Series A Preferred Stock (the “Preferred Holders”) 1,444,500 warrants (the “Replacement Warrants”) to replace the warrants 1,275,000 warrants and 169,500 warrants issued to Tuesday Investor LP and NH Credit Partners III Holdings L.P., respectively, prior to the date hereof, (B) enter into a warrant agreement substantially in the form of Exhibit C hereto (the “New Warrant Agreement”), by and between the Company and the Agent, pursuant to which the Company will issue and deliver to the Preferred Holder warrants equal to the greater of (a) up to ten percent (10%) of the total amount of outstanding shares of Class A Common Stock, par value $0.0001 per share, of the Company (“Common Stock”) as of the Amendment Effective Date (as defined below) or (b) 9,464,967 shares of Common Stock (together with the Replacement Warrants, the “New Warrants”)1 and (C) enter into an amended and restated registration rights agreement (the “Registration Rights Agreement” and together with the Replacement Warrant Agreement, the New Warrant Agreement and the Amendment, the “Transaction Documents”) by and between the Company and the holder party thereto (the transaction described in the foregoing clauses (A), (B), and (C), the “Reorganization Transactions”); and
WHEREAS, the Company hereby approves the Reorganization Transactions and agrees that it will issue to the Preferred Holders the New Warrants pursuant to the Replacement Warrant Agreement and the New Warrant Agreement upon the terms and subject to the conditions set forth herein.
1 88.3% of New Warrants to be issued to Tuesday Investor LP with the balance to be issued to NH Credit Partners III Holdings L.P.
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All terms used herein that are defined in the Certificate of Designation and not otherwise defined herein shall have the meanings assigned to them in the Certificate of Designation (as amended hereby).
2. Amendment. Upon the terms and subject to the conditions of this Amendment, on the Amendment Effective Date (as defined below), the Certificate of Designation shall be amended and restated in its entirety substantially in the form of Exhibit A hereto.
3. Representations and Warranties. The Company hereby represents and warrants to the Preferred Majority Holders as follows as of the date of this Amendment and as of the Amendment Effective Date, except to the extent that a representation or warranty expressly states that such representation or warranty is made as of a specific date:
(a) Representations and Warranties; No Event of Default. The representations and warranties herein, in the Financing Agreement (as amended) and in each other Transaction Document, certificate or other writing delivered to the Preferred Majority Holders pursuant to any Transaction Document on or prior to the Amendment Effective Date (as defined below) are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date (unless such representations or warranties are stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as of such earlier date). To the Company’s knowledge, no Financial Covenant Default, Cash Dividend Default, or Financing Agreement Cross Default has occurred and is continuing as of the Amendment Effective Date or would result from this Amendment becoming effective in accordance with its terms.
(b) Authorization, Etc. The execution, delivery and performance of this Amendment by the Company, and the performance of the Certificate of Designation, as amended hereby (i) have been duly authorized by all necessary organizational action, (ii) do not and will not contravene (A) its Certificate or Bylaws, (B) any applicable material Requirement of Law or (C) any Contractual Obligation binding on it or any of its properties except, in the case of this clause (ii)(C), to the extent such contravention could not reasonably be expected to have a Material Adverse Effect, and (iii) have been duly authorized, executed and delivered by the Company and constitute legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
4. Conditions to Effectiveness of the Amendment. This Amendment shall become effective (and, for the avoidance of doubt, (x) the Certificate of Designation shall be amended and restated and (y) the Replacement Warrants and the New Warrants shall be issued and the Reorganization Transactions shall be effective) only upon satisfaction in full, in a manner reasonably satisfactory to the Preferred Majority Holders, of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being hereinafter referred to as the “Amendment Effective Date”):
(a) Financing Agreement and Related Transactions. On or before the Amendment Effective Date (or such later date as may be mutually agreed upon by the Preferred Majority Holders and the Company), (i) at least $15,000,000 of Amendment No. 21 Term Loans (under and as defined in the Financing Agreement) shall have been funded to the Company by the lenders and in the amounts set forth on Schedule 1.01(A)(v) of the Financing Agreement (as amended by Financing Agreement Amendment No. 21) as in effect on the date hereof and (ii) the Company and its applicable Subsidiaries shall have arranged for the issuance of letters of credit in the aggregate face amount of $15,000,000 from the L/C Issuer under the L/C Facility, on terms and conditions satisfactory to the Preferred Majority Holders.
(b) Representations and Warranties. The representations and warranties herein, in the Financing Agreement and in each other Transaction Document, certificate, or other writing delivered to the Preferred Majority Holders pursuant to any Transaction Document on or prior to the Amendment Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)).
(c) No Default; Event of Default. No Financial Covenant Default, Cash Dividend Default, or Financing Agreement Cross Default shall have occurred and be continuing as of the Amendment Effective Date or result from this Amendment becoming effective in accordance with its terms.
(d) Deliveries by the Company. On or before the Amendment Effective Date, the Company shall deliver, or cause to be delivered, to the Preferred Majority Holders the following:
(i)the Replacement Warrant Agreement;
(ii)the New Warrant Agreement;
(iii) the Registration Rights Agreement in substantially the form of Exhibit D;
(iv)Financing Agreement Amendment No. 21 substantially in the form of Exhibit E;
(v)a certificate of an authorized officer of the Company, certifying as to a copy of the resolutions of the Company authorizing (1) the transactions contemplated by this Amendment and the Transaction Documents, and (2) the execution, delivery and performance by the Company of the Transaction Documents and the execution and delivery of the other documents to be delivered by the Company in connection herewith and therewith and;
(vi)a customary opinion of Reed Smith LLP, counsel to the Company;
(vii)a fully-earned and non-refundable amendment fee equal to $3,000,000, which shall be paid-in-kind by being added pro rata to the then outstanding amount of Accrued Dividends with respect to each share of Series A Preferred Stock and shall accrue dividends as provided under the Certificate of Designation (as amended hereby), to the holders of Series A Preferred Stock.
5. Warrants. The Company shall deliver to each Preferred Holder Replacement Warrants and New Warrants for such number of shares of common stock as set forth on Schedule I, (i) on the Amendment Effective Date, (ii) on September 30, 2026, if any shares of Series A Preferred Stock remain outstanding on such date, and (iii) on September 30, 2027, if any shares of Series A Preferred Stock remain outstanding on such date.
6. Consultant. The Company agrees and covenants that upon a written request made by TCW Asset Management Company LLC (“TCW”), it will retain a financial consultant acceptable to TCW, the Preferred Majority Holders and the Company, on terms and conditions and with a scope of engagement reasonably acceptable in good faith to TCW, the Preferred Majority Holders and the Company (“Consultant”), provided, that the agreement of the Company to the selection of the Consultant and the Consultant’s scope of engagement shall not be unreasonably withheld, conditioned or delayed. All fees and expenses of such Consultant shall be the responsibility of the Company and its Subsidiaries. The Company further agrees to:
(a) reasonably cooperate with such Consultant and grant such Consultant access to the books and records of the Company and its Subsidiaries;
(b) permit the TCW and the Preferred Majority Holders (or their agents or advisors) to communicate directly with such Consultant regarding any and all matters related to the Company and its Subsidiaries and their respective Affiliates, including, without limitation, all financial reports and projections developed, reviewed or verified by such
Consultant and all additional information, reports and statements reasonably requested by TCW or the Preferred Majority Holders (so long as the Company has the opportunity to be present for or to be copied on such communications, as applicable);
(c) authorize and direct such Consultant to provide the TCW and the Preferred Majority Holders (or their agents or advisors) with copies of reports and other information or materials prepared or reviewed by such Consultant as TCW or the Preferred Majority Holders may reasonably request (with a copy to the Company, to the extent not previously provided to the Company); and
(d) during the term of engagement of such Consultant, host such periodic telephonic conference calls with such Consultant, TCW and the Preferred Majority Holders as TCW or the Preferred Majority Holders may reasonably request to discuss such matters.
7. Good Standing. The Company agrees that within sixty (60) days after the Amendment Effective Date (or such later date as agreed to in writing by the Preferred Majority Holders in their sole discretion), the Preferred Majority Holders shall receive a certificate of the appropriate official(s) of the jurisdiction of organization of SkyLink Travel, Inc., a California corporation, certifying as of a recent date as to the subsistence in good standing of such entity.
8. No Representations by the Preferred Majority Holders. The Company hereby acknowledges that it has not relied on any representation, written or oral, express or implied, by the Preferred Majority Holders, other than those expressly contained herein, in entering into this Amendment.
9. Further Assurances. The Company shall execute any and all further documents, agreements and instruments, and take all further actions, as may be required under applicable law or as the Preferred Majority Holders may reasonably request, in order to effect the purposes of this Amendment.
10. Release. For and in consideration of the agreements contained in this Amendment and other good and valuable consideration, the Company (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “Releasors”) does hereby fully, finally, unconditionally and irrevocably, to the extent permitted by applicable law, release, waive and forever discharge the Preferred Majority Holders, together with their respective Affiliates, and each of the directors, officers, employees and agents of each of the foregoing (collectively, the “Released Parties”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Transaction Document; provided, that
notwithstanding the foregoing, such release shall not apply (1) to the extent resulting from the gross negligence, bad faith or willful misconduct of the Released Parties, as determined by a final non-appealable judgment of a court of competent jurisdiction or (2) claims arising from a breach of this Amendment, the Financing Agreement or any other Transaction Document.
11. Plan of Reorganization. The parties hereto intend that (i) this Amendment and the transactions contemplated herein shall be a “plan of reorganization” pursuant to Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury Regulations Section 1.368-2(g) based on which the Reorganization Transactions occur, (ii) the Reorganization Transactions constitute a “recapitalization” pursuant to Section 368(a)(1)(E) of the Code and any similar or analogous provisions of state and local law, and (iii) the warrants issued pursuant to the New Warrant Agreement be treated in the manner set forth in Section 8.6 of the New Warrant Agreement (the “Intended Tax Treatment”). The Company and the Preferred Majority Holders shall agree to the fair market value of the shares of Series A Preferred Stock and any warrants issued or deemed issued pursuant to the Reorganization Transactions within 60 days following any such issuance. If the parties cannot so agree, the matter shall be referred to a nationally recognized accounting or valuation firm mutually selected by the Company and the Preferred Majority Holders, whose written determination shall be final and binding on the parties (and the costs of which shall be borne equally by the Company and the Preferred Majority Holders). Each of the parties hereto agree to report the Reorganization Transactions and the warrants issued pursuant to the New Warrant Agreement (and any fair market value determinations pursuant to this Section 11) on their applicable tax returns consistent with the Intended Tax Treatment and not take any inconsistent position in a tax proceeding or tax return, unless otherwise required by applicable law or pursuant to a final “determination” as defined under Section 1313(a) of the Code (or any similar or analogous provision of state or local tax law); provided, however, that no such party shall be unreasonably impeded in its ability and discretion to negotiate, compromise, or settle any tax proceeding in connection with the Intended Tax Treatment.
12. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart of this Amendment.
(b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
(c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
(d) Any provision of this Amendment 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 portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(e) The Company will promptly pay on demand all reasonable and documented out-of-pocket costs and expenses of the Preferred Majority Holders in connection with the preparation, negotiation, execution and delivery of this Amendment, including, without limitation, reasonable and documented (it being understood that line item detail time entries shall not be required) fees, costs and expenses of Ropes & Gray LLP, counsel to the Preferred Majority Holders. Notwithstanding the foregoing, on the date hereof, the Company shall pay any invoices received on or before the date hereof with respect to such fees and expenses.
(f) On or prior to the Amendment Effective Date, each of the Preferred Majority Holders shall deliver to the Company a properly completed IRS Form W-9, certifying that each such Preferred Majority Holder is not subject to U.S. federal backup withholding taxes, duly executed and dated as of the Amendment Effective Date.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first page hereof.
COMPANY:
MONDEE HOLDINGS, INC.
By: /s/ Prasad Gundumogula
Name: Prasad Gundumogula
Title: Chief Executive Officer
PREFERRED MAJORITY HOLDERS:
TUESDAY INVESTOR LP
By: /s/ Gabriel T. Schwartz
Name: Gabriel T. Schwartz
Title: Co-Deputy Executive Managing Member
NH CREDIT PARTNERS III HOLDINGS L.P.
By: /s/Griffin Coakley
Name: Griffen Coakley
Title: Vice President
Schedule I
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| Holder Name | Replacement Warrant Number of shares of common stock | New Warrant Number of shares of common stock |
| Amendment Effective Date2 | TUESDAY INVESTOR LP | 1,275,000 | |
| September 30, 20263 | TUESDAY INVESTOR LP | 0 | |
| September 30, 20274 | TUESDAY INVESTOR LP | 0 | |
| | | | | | | | | | | |
| Holder Name | Replacement Warrant Number of shares of common stock | New Warrant Number of shares of common stock |
| Amendment Effective Date5 | NH CREDIT PARTNERS III HOLDINGS L.P. | 169,500 | |
| September 30, 20266 | NH CREDIT PARTNERS III HOLDINGS L.P. | 0 | |
| September 30, 20277 | NH CREDIT PARTNERS III HOLDINGS L.P. | 0 | |
2 88.3% of New Warrants to be issued to Tuesday Investor LP with the balance to be issued to NH Credit Partners III Holdings L.P.
3 88.3% of New Warrants to be issued to Tuesday Investor LP with the balance to be issued to NH Credit Partners III Holdings L.P.
4 88.3% of New Warrants to be issued to Tuesday Investor LP with the balance to be issued to NH Credit Partners III Holdings L.P.
5 88.3% of New Warrants to be issued to Tuesday Investor LP with the balance to be issued to NH Credit Partners III Holdings L.P.
6 88.3% of New Warrants to be issued to Tuesday Investor LP with the balance to be issued to NH Credit Partners III Holdings L.P.
7 88.3% of New Warrants to be issued to Tuesday Investor LP with the balance to be issued to NH Credit Partners III Holdings L.P.
EXHIBIT A
Third Amended and Restated Certificate of Designation
(To be attached)
EXHIBIT B
Replacement Warrant Agreement
(To be attached)
EXHIBIT C
New Warrant Agreement
(To be attached)
EXHIBIT D
Registration Rights Agreement
(To be attached)
EXHIBIT E
Financing Agreement Amendment No. 21
(To be attached)
Certain identified information marked with “[***]” has been omitted from this document because it is both (i) not material and (ii) the type that the registrant treats as private or confidential.
THIRD AMENDED AND RESTATED CERTIFICATE OF DESIGNATION OF
PREFERENCES, RIGHTS AND LIMITATIONS
OF SERIES A-1, SERIES A-2 AND SERIES A-3 PREFERRED STOCK
| | |
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware |
Pursuant to the provisions of Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), Mondee Holdings, Inc. (f/k/a ITHAX Acquisition Corp.), a corporation organized and existing under the DGCL (hereinafter called the “Company”), in accordance with the provisions of Section 103 thereof, does hereby submit the following:
WHEREAS, the Amended and Restated Certificate of Incorporation of the Company (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Certificate”) authorizes the issuance of preferred stock, par value $0.0001 per share, of the Company (“Preferred Stock”) in one or more series; and expressly authorizes the Board of Directors of the Company (the “Board” or “Board of Directors”), subject to limitations prescribed by the Requirements of Law, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock, and, with respect to each such series, to establish and fix the number of shares to be included in any series of Preferred Stock and the designations, rights, preferences, powers, restrictions and limitations of the shares of such series;
WHEREAS, the Board, pursuant to its authority as aforesaid, designated a series of Preferred Stock, par value $0.0001 per share, as the Series A Preferred Stock (under and as defined in the September 2022 Certificate of Designation), by resolution dated September 29, 2022;
WHEREAS, the Company, in accordance with Sections 103 and 151 of the DGCL, filed a certificate of designation on September 29, 2022 (the “September 2022 Certificate of Designation”) with the Secretary of State of the State of Delaware to set the number of shares constituting the Series A Preferred Stock (under and as defined in the September 2022 Certificate of Designation) and the voting powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations and restrictions thereof;
WHEREAS, the Company, in accordance with Sections 103 and 151 of the DGCL, filed an amended and restated certificate of designation on October 17, 2023 (the “October 2023 Certificate of Designation”) with the Secretary of State of the Delaware to set the number of shares constituting the Series A Preferred Stock (under and as defined in the October 2023 Certificate of Designation), and the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications, limitations and restrictions thereof;
WHEREAS, the Company, in accordance with Sections 141 and 242 of the DGCL, made certain amendments to the October 2023 Certificate of Designation on December 14, 2023 (the “December 2023 Certificate of Designation”) to set the number of shares constituting the Series A Preferred Stock (under and as defined in the December 2023 Certificate of Designation), and the voting powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations and restrictions thereof;
WHEREAS, the Company entered into that certain Amendment and Restatement (“Amendment”) of the December 2023 Certificate of Designation on August 13, 2024 and agreed to file, in accordance with Sections 103 and 151 of the DGCL, an amended and restated certificate of designation on the date upon which the conditions set forth in Section 4 of the Amendment are satisfied (the “Effective Date”) (the “Third A&R Certificate of Designation”) with the Secretary of State of the Delaware to set the number of shares constituting the Series A Preferred Stock (under and as defined in the December 2023 Certificate of Designation), and the voting powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations and restrictions thereof;
WHEREAS, the Third A&R Certificate of Designation has been duly adopted and approved by the Preferred Majority Holders (under and as defined in the December 2023 Certificate of Designation).
NOW THEREFORE, BE IT RESOLVED, that, pursuant to authority conferred upon the Board of Directors by the Certificate, the Board of Directors hereby amends and restates the December 2023 Certificate of Designation in its entirety as set forth herein and hereby creates and fixes the series, designations, powers, preferences and other rights, and the qualifications, limitations or restrictions, of the Preferred Stock to be issued hereunder, as follows:
Section 1. Designation. The number of authorized shares constituting the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock shall be 0, 85,000 and 15,000, respectively. Subject to the provisions of Section 8, that number from time to time may be increased or decreased (but not below the number of shares of Series A Preferred Stock of any series then outstanding) by (a) further resolution duly adopted by the Board, or any duly authorized committee thereof and (b) the filing of an amendment to this Certificate of Designation pursuant to the provisions of the DGCL stating that such increase or decrease, as applicable, has been so authorized.
Section 2. Ranking. The Series A Preferred Stock of each series will rank, with respect to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company and (except as permitted hereby) redemption rights:
(a)on a parity basis with each other and with each other class or series of Capital Stock of the Company now existing or hereafter authorized, classified or reclassified, the
terms of which expressly provide that such class or series ranks on a parity basis with the Series A Preferred Stock as to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company and (except as permitted hereby) redemption rights (such Capital Stock, “Parity Stock”);
(b)junior to each other class or series of Capital Stock of the Company now existing or hereafter authorized, classified or reclassified, the terms of which expressly provide that such class or series ranks senior to the Series A Preferred Stock as to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company and (except as permitted hereby) redemption rights (such Capital Stock, “Senior Stock”); and
(c)senior to the Common Stock and each other class or series of Capital Stock of the Company now existing or hereafter authorized, classified or reclassified, the terms of which do not expressly provide that such class or series ranks on a parity basis with, or senior to, the Series A Preferred Stock as to dividend rights, rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company and (except as permitted hereby) redemption rights (such Capital Stock, “Junior Stock”).
The Company’s ability to issue Parity Stock, Senior Stock and Junior Stock shall be subject in all respects to the provisions of Section 8, and the Company shall not, and shall not be permitted to, issue any Parity Stock, Senior Stock or Junior Stock in violation thereof. The respective definitions of Parity Stock, Senior Stock and Junior Stock shall also include any securities, rights or options exercisable or exchangeable or convertible into Parity Stock, Senior Stock or Junior Stock, as the case may be.
Section 3. Definitions. As used herein with respect to Series A Preferred Stock:
“A-2 and A-3 Majority Holders” means, at any time of determination, the Holders of a majority of outstanding shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock acting as one class, as modified by Section 8(a).
“Accrued Dividends” means, as of any date, with respect to any share of Series A Preferred Stock, all Dividends that have accrued on such share through the most recent Dividend Payment Date on or prior to such date pursuant to Section 4(b) or Section 11, whether or not declared, but that have not, as of such date, been paid in cash.
“Acquisition” has the meaning set forth in Section 8(b)(x).
“Additional Holders” has the meaning set forth in Section 8(b).
“Adjusted EBITDA” shall have the meaning ascribed to such term as set forth in the Earnings Release for Q2 2023 issued by the Company on August 15, 2023; provided, however, if, during the period for which Adjusted EBITDA is calculated, there occurs any material adverse change in the business, results of operations or financial condition of the Company, taken as a whole, which affects the industry in which the Company’s business is engaged, including as a
result of any acts of war or terrorism or any escalation or material worsening of any such acts of war or terrorism existing as of the date hereof, acts of God and natural disasters, including floods, tornados, hurricanes, earthquakes and fires and pandemics, such as COVID-19, and/or general economic, political and financial market changes, then, except to the extent such change disproportionately affects the Company as compared to other persons or businesses that operate in the industries in which the Company operates, the duration of such change, not to exceed six months in the aggregate for all such events during the term of the Preferred Stock, shall be excepted from the period for which Adjusted EBITDA is calculated hereunder and, as such, Adjusted EBITDA shall be calculated on a pro rata basis in determining whether the applicable Adjusted EBITDA target has been achieved.
“Affiliate” means, with respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authorized Investors” means (a) funds affiliated with (i) NH Credit Partners III Holdings L.P., (ii) Fly OCP LLC, (iii) ARCPE LLC and (iv) Siris Capital and (b) members of the Company’s management as of the Incremental Closing Date and funds affiliated with such members of the Company’s management.
“Authorized Officer” has the meaning ascribed to such term in the Financing Agreement.
“Beneficial Ownership Regulation” means 31 C.F.R. Section 1010.230.
“Board” and “Board of Directors” has the meaning set forth in the recitals above.
“Board Information” has the meaning set forth in Section 9(b).
“Board Member” has the meaning set forth in Section 9(b).
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
“Bylaws” means the Amended and Restated By-laws of the Company, as may be amended from time to time in accordance with the terms of the Certificate (including this Certificate of Designation).
“Capital Expenditures” has the meaning ascribed to such term in the Financing Agreement.
“Capital Stock” means, of any Person, any and all shares of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock.
“Cash Dividend Default” means the Company fails to pay in full in cash any portion of a Dividend that is to be paid in cash on the applicable Dividend Payment Date pursuant to Section 4(c).
“Certificate” has the meaning set forth in the recitals above.
“Certificate of Designation” means this Certificate of Designation of Rights, Preferences and Limitations of the Series A-1, A-2 and A-3 Preferred Stock.
“Change of Control” means the occurrence of any of the following events: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock of the Company or (b) the direct or indirect sale, assignment, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than one or more Permitted Holder.
“Close of Business” means 5:00 p.m. (New York City time).
“Common Stock” means the common stock, par value $0.0001 per share, of the Company.
“Company” has the meaning set forth in the recitals above.
“Consolidated EBITDA” has the meaning ascribed to such term in the Financing Agreement.
“Controlled Investment Affiliate” means, as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Deal Counsel” has the meaning set forth in Section 6(e)(v).
“Debt Conversion Trigger” means (a) any Financial Covenant Default on or after September 30, 2026, (b) any Cash Dividend Default, or (c) any Financing Agreement Cross-Default.
“DGCL” has the meaning set forth in the preamble.
“Disqualified Stock” means, with respect to any Person, any Equity Capital Stock that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an “asset sale” or other disposition) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an “asset sale” or other disposition), in whole or in part; provided that Equity Capital Stock issued to any employee benefit plan, or by any such plan to any employees of the Company or any Subsidiary thereof, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.
“Dividend Payment Date” means March 31, June 30, September 30, and December 31 of each year, commencing on September 30, 2022 (the “Initial Dividend Payment Date”); provided that if any such Dividend Payment Date is not a Business Day, then the applicable Dividend shall be payable on the Business Day immediately preceding such Dividend Payment Date.
“Dividend Payment Period” means the period from and including the applicable Issuance Date to, but excluding, the applicable Initial Dividend Payment Date and, subsequent to such Initial Dividend Payment Date, the period from and including any Dividend Payment Date to, but excluding, the next Dividend Payment Date.
“Dividend Rate” means with respect to the Series A Preferred Stock as of any time of determination a rate 1.00% per annum greater than the rate paid upon any Indebtedness of the Company or any of its Subsidiaries (including, for the avoidance of doubt, the Financing Agreement and the L/C Facility); provided, that in no event shall the “Dividend Rate” be less than SOFR +12.00% per annum.
“Dividend Record Date” has the meaning set forth in Section 4(d).
“Dividends” has the meaning set forth in Section 4(a).
“Equity Capital Stock” means Capital Stock other than any debt securities convertible into equity interests.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time; provided that for purposes of the definitions of Change of Control and Permitted Holders, “Exchange Act” means the Securities Exchange Act of 1934 as in effect on the Original Issue Date.
“Excluded Holder” means (i) any Affiliate of the Company (and any Affiliates of such Person), and (ii) any Person holding 5% or more of the total voting power of Voting Stock of the Company or of the Company’s Capital Stock (and any Affiliates of such Person), in each case other than the Series A Investor and its Affiliates.
“Financial Advisor” has the meaning set forth in Section 6(e)(v).
“Financial Covenant Default” means the Company fails to comply with any provision of Section 10.
“Financial Statements” means (a) the audited consolidated balance sheet of the Company and its Subsidiaries for the applicable Fiscal Year and the related consolidated statement of operations, shareholders’ equity and cash flows for such Fiscal Year then ended.
“Financing Agreement” means that certain Financing Agreement, dated as of December 23, 2019, by and among Mondee Holdings, LLC, the lenders from time to time party thereto, TCW Asset Management Company LLC (“TCW”), as administrative agent for the lenders, and other parties thereto, as amended by that certain Financing Agreement Amendment No. 21, and as further amended, supplemented, amended and restated or otherwise modified from time to time; provided, that any definition or section of the Financing Agreement referenced herein shall, solely for the purposes of this Third A&R Certificate of Designation, be as of the date hereof without any amendment, modification or other change.
“Financing Agreement Amendment No. 21” means that certain Amendment No. 21 to the Financing Agreement, dated as the Third Incremental Closing Date.
“Financing Agreement Cross-Default” means that there exists, on or after September 30, 2026, any default under the Financing Agreement which either (i) remains uncured for more than or (ii) is not waived by TCW within 60 days after the date on which TCW first becomes aware of such default.
“Fiscal Quarter” has the meaning ascribed to such term in the Financing Agreement.
“Fiscal Year” has the meaning ascribed to such term in the Financing Agreement.
“Fixed Charge Coverage Ratio” has the meaning ascribed to such term in the Financing Agreement.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including the European Union.
“Holder” means a Person in whose name the shares of the Series A Preferred Stock are registered, which Person shall be treated by the Company and Transfer Agent as the absolute owner of the shares of Series A Preferred Stock for the purpose of making payment and for all other purposes; provided that, to the fullest extent permitted by Requirements of Law, no Person that has received shares of Series A Preferred Stock in violation of the Share Subscription Agreement or this Certificate of Designation shall be a Holder and the Transfer Agent shall not,
unless directed otherwise by the Company, recognize any such Person as a Holder and the Person in whose name the shares of the Series A Preferred Stock were registered immediately prior to such transfer shall remain the Holder of such shares.
“Incremental Closing Date” means October 17, 2023.
“Incremental Shares” has the meaning set forth in Section 8(b).
“Indebtedness” means with respect to any Person on any date of determination (without duplication): (i) the principal of indebtedness of such Person for borrowed money; (ii) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (iii) all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are expected to be satisfied within 30 days of becoming due and payable); (iv) all Indebtedness of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; (v) all guarantees by such Person of Indebtedness of other Persons, to the extent so guaranteed by such Person; (vi) monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; and (vii) the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of the Company) Preferred Stock of such Subsidiary, but excluding, in each case, any Accrued Dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Equity Capital Stock, or if less (or if such Equity Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Equity Capital Stock, such fair market value shall be as determined in good faith by the Company). The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer.
“Indemnified Person” has the meaning set forth in Section 21(b).
“Issuance Date” means, with respect to any share of Series A Preferred Stock, the date of issuance of such share.
“Junior Stock” has the meaning set forth in Section 2(c).
“L/C Facility” means a letter of credit facility, on terms and conditions satisfactory to the Preferred Majority Holders, arranged by the Company, for the issuance by the L/C Issuer of letters of credit in an aggregate face amount of up to $15.0 million.
“L/C Issuer” means NH Credit Partners III Holdings L.P. and/or its Affiliates or another financial institution acceptable to the Preferred Majority Holders.
“Leverage Ratio” has the meaning ascribed to such term in the Financing Agreement.
“Material Adverse Effect” means any circumstance or condition (excluding any matters publicly disclosed prior to July 20, 2022) that would materially adversely affect (1) the business, operations, property or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, (2) the validity or enforceability as to the Company of this Certificate of Designation, (3) the ability of the Company to perform its payment obligations under this Certificate of Designation or (4) the material rights or remedies (taken as a whole) of the Holders under this Certificate of Designation.
“MOIC” means, with respect to a share of Series A-1 Preferred Stock and Series A-2 Preferred Stock, a multiple on invested capital equal to the quotient determined by dividing (A) the sum of (w) the aggregate amount of all Dividends made in cash with respect to such share of Series A-1 Preferred Stock and Series A-2 Preferred Stock on or prior to the applicable date of determination (other than any Dividends paid in cash in respect of any Non-Compliance Step-Up) plus (x) 100% of the Stated Value and Accrued Dividends with respect to such share of Series A-1 Preferred Stock and Series A-2 Preferred Stock (other than any portion of the Accrued Dividends attributable to any Non-Compliance Step-Up) plus (y) 100% of the accrued but unpaid Dividends as of such date with respect to such share of Series A-1 Preferred Stock and Series A-2 Preferred Stock (other than any portion of accrued but unpaid Dividends attributable to any Non-Compliance Step-Up), plus (z) the applicable premium paid in accordance with Section 6(a) with respect to such share of Series A-1 Preferred Stock and Series A-2 Preferred Stock by (B) the Stated Value.
“Non-Compliance Event” shall mean, with respect to all series of Preferred Stock (unless a particular term or covenant is explicitly stated to be for the benefit of one or more particular series, then such Non-Compliance Event shall be deemed to have occurred only with respect to such one or more series):
(i)failure by the Company and its Subsidiaries to comply with Section 8 hereof;
(ii)the Company or any Subsidiary shall default in the observance or performance of any other agreement contained in this Certificate of Designation or the Amendment, and such default shall continue unremedied for a period of 30 days after the date on which written notice thereof shall have been given to the Company by the Preferred Majority Holders;
(iii)any representation or warranty made by the Company or any of its Subsidiaries in the Share Subscription Agreement (or in any amendment, modification or supplement thereto), the Amendment (or in any amendment, modification or supplement thereto) or which is contained in any certificate furnished at any time by or on behalf of the Company or any of its Subsidiaries pursuant to the Share Subscription Agreement, the
Amendment or this Certificate of Designation shall prove to have been incorrect in any material respect on or as of the date made or deemed made and the circumstances giving rise to such misrepresentation, if capable of alteration, are not altered so as to make such representation or warranty correct in all material respects by the date falling 30 days after the date on which written notice thereof shall have been given to the Company by the Preferred Majority Holders;
(iv)(1) the commencement by the Company or any of its Subsidiaries of any case, Proceeding or other action (A) under any existing or fixture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, 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, interim receiver, receivers, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Company, any of its Subsidiaries shall make a general assignment for the benefit of its creditors; or (2) the commencement against the Company or any of its Subsidiaries of any case, Proceeding or other action of a nature referred to in clause (1) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days; or (3) the commencement against the Company or any of its Subsidiaries of 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 which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (4) the Company or any of its Subsidiaries shall take any corporate or other organizational action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (1), (2), or (3) above; or (5) the Company or any of its Subsidiaries shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due;
(v)the entry of one or more judgments or decrees against the Company or any of its Subsidiaries involving in the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) in excess of $10,000,000, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof;
(vi)the occurrence of a Change of Control;
(vii)a breach by any of the parties to that certain voting agreement, dated as of December 14, 2023, among the Company and certain of its equityholders, of any of their material obligations thereunder, or any amendment, modification, waiver or termination of such agreement in a manner that would adversely affect the Holders;
(viii)a Cash Dividend Default;
(ix)a Financial Covenant Default; or
(x)a Financing Agreement Cross-Default.
“Non-Compliance Step-Up” has the meaning set forth in Section 11.
“Notice of Optional Redemption” has the meaning set forth in Section 6(b).
“October 2023 Certificate of Designation” has the meaning set forth in the recitals.
“Optional Redemption” has the meaning set forth in Section 6(a).
“Original Issue Date” means September 29, 2022.
“Parity Stock” has the meaning set forth in Section 2(a).
“Paying Agent” means the paying agent of the Company with respect to the Series A Preferred Stock duly appointed from time to time.
“Permitted Holders” means Prasad Gundumogula or any Controlled Investment Affiliate thereof.
“Permitted Lenders” means TCW (as defined in the Financing Agreement), Wingspire (as defined in the Financing Agreement), NH Credit Partners III Holdings L.P., and each of their respective Affiliates.
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“Preferred Majority Holders” means, at any time of determination, the Holders of a majority of outstanding shares of Series A Preferred Stock acting as one class, as modified by Section 8(a).
“Preferred Stock” has the meaning set forth in the recitals.
“Proceeding” has the meaning set forth in Section 21(b).
“Prohibited Transferees” means any competitor of the Company and its Subsidiaries that is in the same or a similar line of business as the Company and its Subsidiaries or any controlled Affiliate of such competitor, in each case designated in writing by the Company to the Holders from time to time or that are clearly identifiable as Affiliates solely on the basis of the similarity of their name; provided, that no such update shall apply retroactively to disqualify any Transfer to the extent such Transfer was made to a party (or its Affiliates) that was not a Prohibited Transferee at the time of such Transfer.
“Projections” has the meaning ascribed to such term in the Financing Agreement.
“Promissory Note” has the meaning set forth in Section 6(e)(iii).
“Promissory Note Election Notice” has the meaning set forth in Section 6(e)(iii).
“Put Date” means December 31, 2028.
“Put Demand” has the meaning set forth in Section 6(e)(i).
“Put Payment Date” has the meaning set forth in Section 6(e)(ii).
“Put Price” has the meaning set forth in Section 6(e)(i).
“Redemption Date” means with respect to the redemption of shares of Series A Preferred Stock pursuant to this Certificate of Designation, the date set forth in the applicable Notice of Optional Redemption in accordance with Section 6(b).
“Redemption Price” has the meaning set forth in Section 6(a).
“Refinancing Indebtedness” means Indebtedness that is incurred to refinance any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the Original Issue Date or incurred (or established) in compliance with this Certificate of Designation (including Indebtedness of the Company that refinances Indebtedness of any Subsidiary and Indebtedness of any Subsidiary that refinances Indebtedness of another Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided, that such Refinancing Indebtedness is incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount then outstanding of the Indebtedness being refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under the financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with this Certificate of Designation immediately prior to such refinancing plus (z) fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred in connection with such Refinancing Indebtedness.
“Requirement of Law” means, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.
“Responsible Officer” means, as to any Person, any of the following officers of such Person: (a) the chief executive officer or the president and, with respect to financial matters, the chief financial officer, the treasurer or the controller, (b) any executive vice president or, with respect to financial matters, any treasurer or controller, who has been designated in writing to the Holders as a Responsible Officer by such chief executive officer or president or, with respect to financial matters, such chief financial officer, treasurer or controller, and (c) with respect to Section 12 and without limiting the foregoing, the general counsel.
“SEC” means the Securities and Exchange Commission.
“Senior Stock” has the meaning set forth in Section 2(b).
“September 2022 Certificate of Designation” has the meaning set forth in the recitals.
“Series A Investor” means the Person who, together with its investment funds, separate accounts, and other entities owned (in whole or in part), controlled, managed, and/or advised by it or its Affiliates, held on the Incremental Closing Date the majority of the Series A Preferred Stock issued and outstanding on the Incremental Closing Date, together with such Holder’s investment funds, separate accounts, and other entities owned (in whole or in part), controlled, managed, and/or advised by it or its Affiliates.
“Series A Investor Observer” has the meaning set forth in Section 9(a).
“Series A Preferred Stock” means the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock.
“Series A-1 Preferred Stock” a series of Preferred Stock of the Company par value $0.0001 per share, classified as “Series A-1 Preferred Stock.”
“Series A-2 Preferred Stock” a series of Preferred Stock of the Company par value $0.0001 per share, classified as “Series A-2 Preferred Stock.”
“Series A-3 Preferred Stock” a series of Preferred Stock of the Company par value $0.0001 per share, classified as “Series A-3 Preferred Stock.”
“Share Subscription Agreement” means, collectively, those certain (a) Subscription Agreements dated as of September 29, 2022, and (b) Subscription Agreements dated as of the date hereof, in each case among the Company and the investors party thereto.
“SOFR” shall be determined daily and means a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or successor administrator of the secured overnight financing rate) on the Federal Reserve Bank of New York’s website (subject to a 1.00% floor).
“Stated Value” means, with respect to any share of Series A Preferred Stock, as of any date, $1,000 per share (adjusted as appropriate in the event of any shares or securities dividend,
shares or securities sub-division, shares or securities distribution, recapitalization or combination).
“Subsidiary” means, as to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Equity Capital Stock or other equity interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person or (ii) one or more Subsidiaries of such Person.
“Third Incremental Closing Date” means August [__], 2024.
“Transfer” means a sale, transfer, assignment, pledge, hypothecation or other disposition.
“Transfer Agent” means the transfer agent and registrar of the Company with respect to the Series A Preferred Stock duly appointed from time to time.
“Transfer Tax” has the meaning set forth in Section 15(b).
“Voting Stock” means, in relation to a Person, shares of Equity Capital Stock entitled to vote generally in the election of directors to the board of directors or equivalent governing body of such Person.
“Warrants” means the warrants issued pursuant to that Warrant Agreement, by and between the Company and Continental Stock Transfer & Trust Company, dated the date hereof, the warrants issued pursuant to that certain warrant agreement, by and between the Company and Continental Stock Transfer & Trust Company, dated as of December 14, 2023, as amended, and the warrants issued under that certain warrant agreement, dated as of September 29, 2022, as amended, between the Company and Continental Stock Transfer & Trust Company.
Section 4. Dividends.
(a)Dividends. Holders shall be entitled to receive dividends of the type and in the amount determined as set forth in this Section 4 (such dividends, “Dividends”).
(b)Accrual of Dividends. Dividends on each share of Series A Preferred Stock shall accrue at a rate equal to the Dividend Rate (determined on a daily basis) on the Stated Value and on any Accrued Dividends, from and including the Issuance Date of such share, whether or not declared and whether or not the Company has assets legally available to make payment thereof, as further specified below, and shall be cumulative. Dividends on the Series A Preferred Stock shall accrue on the basis of a 365-day year based on actual days elapsed. The amount of Dividends payable with respect to any share of Series A Preferred Stock for any Dividend Payment Period shall equal the sum of the daily Dividend amounts accrued in accordance with the prior sentence of this Section 4(b) with respect to such share during such Dividend Payment Period.
(c)Arrearages; Payment of Dividends.
(i)Prior to September 30, 2026, with respect to each share Series A Preferred Stock on each applicable Dividend Payment Date, the Dividend shall automatically be added to the amount of Accrued Dividends on such share of Series A Preferred Stock without any action on the part of the Company or any other Person.
(ii)On or after September 30, 2026, but before September 30, 2027, with respect to each share Series A Preferred Stock on each applicable Dividend Payment Date, twenty five (25) percent of the Dividend shall be paid in cash and declared by the Company to the extent the Company has sufficient funds to pay (as determined by the Board in good faith) and the amount of such Dividend not paid in cash shall automatically be added to the amount of Accrued Dividends on such share of Series A Preferred Stock on the applicable Dividend Payment Date without any action on the part of the Company or any other Person; provided, that, if the Divided Rate on the applicable Dividend Payment Date is greater than twenty two percent (22%) per annum (the “Cash Dividend Cap”), then the Dividend payable in cash pursuant to this Section 4(c)(ii) shall be calculated with a Dividend Rate equal to five and one half percent (5.5%) and any amount of Dividend in excess of the Dividend payable in cash shall automatically be added to the amount of Accrued Dividends on such share of Series A Preferred Stock on the applicable Dividend Payment date without any action on the part of the Company or any other person.
(iii)On or after September 30, 2027, but before the Put Date, with respect to each share Series A Preferred Stock on each applicable Dividend Payment Date, fifty (50) percent of the Dividend shall be paid in cash and declared by the Company to the extent the Company has sufficient funds to pay (as determined by the Board in good faith) and the amount of such Dividend not paid in cash shall automatically be added to the amount of Accrued Dividends on such share of Series A Preferred Stock on the applicable Dividend Payment Date without any action on the part of the Company or any other Person; provided, that, if the Divided Rate on the applicable Dividend Payment Date is greater than the Cash Dividend Cap, then the Dividend payable in cash pursuant to this Section 4(c)(iii) shall be calculated with a Dividend Rate equal to eleven percent (11%) and any amount of Dividend in excess of the Dividend payable in cash shall automatically be added to the amount of Accrued Dividends on such share of Series A Preferred Stock on the applicable Dividend Payment date without any action on the part of the Company or any other person.
(iv)On or after the Put Date, with respect to each share Series A Preferred Stock on each applicable Dividend Payment Date, the Dividend shall be paid in cash and declared by the Company to the extent the Company has sufficient funds to pay (as determined by the Board in good faith) and the amount of such Dividend not paid in cash shall automatically be added to the amount of Accrued Dividends on such share of Series A Preferred Stock on the applicable Dividend Payment Date without any action on the part of the Company or any other Person; provided, that, if the Divided Rate on the
applicable Dividend Payment Date is greater than the Cash Dividend Cap, then the Dividend payable in cash pursuant to this Section 4(c)(iv) shall be calculated with a Dividend Rate equal to the Cash Dividend Cap and any amount of Dividend in excess of the Dividend payable in cash shall automatically be added to the amount of Accrued Dividends on such share of Series A Preferred Stock on the applicable Dividend Payment date without any action on the part of the Company or any other person.
(v)If the Company fails to declare and pay pursuant to this Section 4(c) any portion of any Dividend in cash on the Series A Preferred Stock on any Dividend Payment Date, the Board shall cause the Company to pay in cash such amounts as the Company has sufficient funds to pay (as determined by the Board in good faith on a monthly basis to the extent that there are any cash Dividends payable pursuant to this Section 4(c)), to the holders of the Series A Preferred Stock on a record date (which record date shall be the fifteenth (15th) day of such calendar month, including any month that includes a Dividend Payment Date, whether or not such day is a Business Day), a Dividend per share of Series A Preferred Stock equal to all or a portion of such Accrued Dividends payable in cash pursuant to this Section 4(c) on such share of Series A Preferred Stock.
(d)Record Date. The record date for payment of Dividends on any relevant Dividend Payment Date will be the Close of Business on the fifteenth (15th) day of the calendar month that contains the relevant Dividend Payment Date (each, a “Dividend Record Date”), whether or not such day is a Business Day.
Section 5. Liquidation Rights.
(a)Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, the Holders shall be entitled, out of assets legally available therefor, before any distribution or payment out of the assets of the Company may be made to or set aside for the holders of any Junior Stock, and subject to the rights of the holders of any Senior Stock or Parity Stock issued in accordance with this Certificate of Designation and the rights of the Company’s existing and future creditors, to receive in full a liquidating distribution in cash and in the amount per share of Series A Preferred Stock equal to the Redemption Price as of the date of such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company. Holders shall not be entitled to any further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company after receiving in full what is expressly provided for in this Section 5, and will have no right or claim to any of the Company’s remaining assets.
(b)Partial Payment. If in connection with any distribution described in Section 5(a) above, the assets of the Company or proceeds therefrom are not sufficient to pay in full the aggregate liquidating distributions required to be paid pursuant to Section 5(a) to all Holders and the liquidating distributions payable to all holders of any Parity Stock issued in accordance with this Certificate of Designation, the amounts distributed to the Holders and to the holders of all such Parity Stock shall be paid pro rata in proportion to the respective aggregate
liquidating distributions to which they would otherwise be entitled if all amounts payable with respect thereto were paid in full.
Section 6. Redemption at the Option of the Company; Put Right; Other Repurchases.
(a)Optional Redemption of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock. Subject to the provisions of this Section 6, the Company, at its option, may redeem for cash all, but not less than all, of the outstanding shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock (each, an “Optional Redemption”). The redemption price per share of Series A-1 Preferred Stock and Series A-2 Preferred Stock shall be equal to the greater of (x) the sum of (A) the Stated Value per share of Series A Preferred Stock to be redeemed plus (B) an amount equal to the Accrued Dividends with respect to such share, calculated in accordance with Section 4, plus (C) accrued and unpaid Dividends since the most recent Dividend Payment Date with respect to such share as of the applicable Redemption Date and (y) the amount necessary, if any, to result in, (A) prior to the second anniversary of the Original Issue Date, a MOIC equal to the product of 1.225 times the Stated Value with respect to such share of Series A Preferred Stock and, (B) from and after the second anniversary of the Original Issue Date, a MOIC equal to the product of 1.325 times the Stated Value with respect to such share of Series A Preferred Stock, in each case under this clause (y) exclusive of the value of the Warrants. The redemption price per share of Series A-3 Preferred Stock shall be equal to the sum of (A) the Stated Value per share of Series A Preferred Stock to be redeemed plus (B) an amount equal to the Accrued Dividends with respect to such share, calculated in accordance with Section 4, plus (C) accrued and unpaid Dividends since the most recent Dividend Payment Date with respect to such share as of the applicable Redemption Date. Such redemption price for the Series A Preferred Stock of each series shall be referred to herein as the “Redemption Price” . The Company shall not be required to redeem any shares of Series A Preferred Stock at any time other than pursuant to Section 6(e).
(b)Exercise of Optional Redemption. If the Company elects to effect an Optional Redemption, the Company shall send to the Holders a written notice in accordance with Section 16 (i) notifying the Holders of the election of the Company to redeem all shares of the Series A Preferred Stock and the Redemption Date, and (ii) stating the place or places at which the shares of such Series A Preferred Stock shall, upon presentation and surrender of the certificates evidencing such shares of Series A Preferred Stock, be redeemed (and other instructions a Holder must follow to receive payment), and the Redemption Price therefor (such notice, a “Notice of Optional Redemption”). The Redemption Date selected by the Company shall be no less than ten (10) Business Days and no more than thirty (30) Business Days after the date on which the Company provides the Notice of Optional Redemption to the Holders. The Notice of Optional Redemption shall state the Redemption Date selected by the Company.
(c)Effect of Redemption. If notice has been mailed in accordance with Section 6(b) above and if on or before the Redemption Date specified in such notice, all funds necessary for such redemption shall have been segregated and irrevocably set apart by the Company and deposited with the Paying Agent in trust for the pro rata benefit of the Holders of
the shares of Series A Preferred Stock, so as to be, and to continue to be available therefor, then, on and after the Redemption Date, unless the Company defaults in the payment of the applicable Redemption Price, Dividends on the shares of the Series A Preferred Stock shall cease to accumulate and all rights of the Holders of the Series A Preferred Stock shall terminate except for the right to receive from the Company the Redemption Price, without interest; provided that if a Notice of Optional Redemption shall have been given and the funds necessary for redemption (including an amount in respect of all Dividends that will accrue to the Redemption Date) shall have been segregated and irrevocably set apart by the Company and deposited with the Paying Agent in trust for the pro rata benefit of the Holders of the Series A Preferred Stock, Dividends shall cease to accumulate on the Redemption Date on the Series A Preferred Stock and, at the Close of Business on the day on which such funds are segregated and set apart, the shares of Series A Preferred Stock shall no longer be deemed to be outstanding and the Holders of the Series A Preferred Stock shall cease to be stockholders of the Company and shall be entitled only to receive the Redemption Price for such shares. Upon surrender, in accordance with said notice, of the certificates, if any, for the Series A Preferred Stock (to the extent applicable, properly endorsed or assigned for transfer, if the Company shall so require and the notice shall so state), such shares shall be redeemed by the Company at the applicable Redemption Price.
(d)[Reserved].
(e)Put Right for Series A-2 Preferred Stock and Series A-3 Preferred Stock.
(i)Unless the Company redeems the Series A-2 Preferred Stock and the Series A-3 Preferred Stock in accordance with this Section 6 by the Put Date, any Holder of Series A-2 Preferred Stock or Series A-3 Preferred Stock shall have the right to put all (but not less than all) of such Holder’s shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock to the Company (a “Put Demand”) at any time from and after the Put Date at a price per share of Series A Preferred Stock equal to (A) the Stated Value per share of Series A Preferred Stock to be subject to the put right plus (B) an amount equal to the Accrued Dividends with respect to such share, calculated in accordance with Section 4, plus (C) accrued and unpaid Dividends since the most recent Dividend Payment Date with respect to such share as of the applicable repurchase date by the Company (the sum of (A), (B), and (C) (including any Non-Compliance Step-Up) multiplied by the total number of shares subject to the Put Demand, the “Put Price”).
(ii)Following the exercise of the put right set forth in this Section 6(e), the Company’s failure to purchase the shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock in cash within ten (10) calendar days thereof (“Put Payment Date”) shall constitute a “Non-Compliance Event” and shall be subject to the provisions of Section 11. If the Company does not, or is unable to, satisfy in-full in-cash the Put Price by the Put Payment Date, the Company shall thereafter (a) use best efforts to maximize the assets legally available for paying the Put Price, including by raising new equity or obtaining additional debt to pay the Put Price, (b) pay out of all such assets legally available therefor on the applicable Put Payment Date or as promptly as practicable
thereafter the Put Price for the maximum possible number of shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock as to which a Put Demand has been exercised that it can purchase on such date, pro rata among the Holders of such shares to be purchased in proportion to the aggregate number of shares subject to the Put Demand by each such Holder on the applicable Put Payment Date or as promptly as practicable thereafter, and (c) following the applicable Put Payment Date, at any time and from time to time when additional assets of the Company become legally available to purchase the remaining shares and the Company has satisfied all other outstanding financial and tax obligations and creditor liabilities, the Company shall immediately use such assets to pay the remaining balance of the aggregate Put Price.
(iii)Notwithstanding the provisions of Section 6(e)(i) and (e)(ii) to the contrary, if the Company fails to satisfy in-full in-cash the Put Price for all (but not less than all) shares of a Holder’s Series A-2 Preferred Stock and Series A-3 Preferred Stock for six (6) months following receipt by the Company of a Put Demand or if earlier, but in no event prior to the date of the Put Demand, the Board of Directors reasonably determines that there are no legally available funds to satisfy the Put Price, the A-2 and A-3 Majority Holders may elect (the “Promissory Note Election Notice”), in satisfaction of such Holders’ rights under this Certificate of Designation, to have the Company deliver the promissory note, in the form attached to this Certificate of Designation as Exhibit A (the “Promissory Note”), payable to the order of each Holder of Series A-2 Preferred Stock and Series A-3 Preferred Stock in the original principal amount equal to the unpaid Put Price (as adjusted for the period elapsed between the date of delivery of the Put Demand and the date of the Promissory Note Election Notice) owed to such Holder, or such lesser amount as determined at the sole discretion of such Holder, on substantially the same terms as set forth in this Section 6.
(iv)Notwithstanding anything to the contrary contained herein, in addition to the A-2 and A-3 Majority Holders rights under Section 6(e)(iii) to make a Promissory Note Election Notice, upon the occurrence of a Debt Conversion Trigger, the A-2 and A-3 Majority Holders may elect to make a Promissory Note Election Notice, in satisfaction of such holders’ rights under this Certificate of Designation, to have the Company deliver the Promissory Note payable to the order of each Holder of Series A-2 Preferred Stock and Series A-3 Preferred Stock in the original principal amount equal to the unpaid Put Price owed to such Holder, or such lesser amount as determined at the sole discretion of such Holder, on substantially the same terms as set forth in this Section 6. Notwithstanding anything to the contrary contained herein, if on or after September 30, 2026, (x) an involuntary petition is filed against the Company under Title 11 of the U.S. Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy or other similar law, or a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) being appointed to take possession, custody or control of any property of the Company or (y) the Company (i) files a petition seeking relief under Title 11 of the U.S. Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy or other similar law, or (ii) consents to the institution of Proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of any property of Company, then all of the Series A-2 Preferred Stock and Series A-3 Preferred Stock shall automatically on such date be converted into a Promissory Note and the Company shall deliver, promptly, but in any event no later than one (1) Business Day following such event, the Promissory Note, payable to each Holder of Series A-2 Preferred Stock and Series A-3 Preferred Stock pursuant to the terms of this Section 6(e)(iv).
(v)On the Put Date, or as soon as practicable thereafter, the Company will engage an investment bank (the “Financial Advisor”) and a law firm (the “Deal Counsel”) reasonably acceptable to the Preferred Majority Holders in order to potentially effectuate a sale of the Company and/or its Subsidiaries (whether by sale of assets, shares, merger, consolidation or otherwise) (a “Sale”). The Financial Advisor and Deal Counsel, as well as any other advisors engaged, will advise the Company with respect to a Sale, and the costs, fees and expenses of such advisors will be paid by the Company pursuant to the terms of engagement letters that are approved by the Board and the Preferred Majority Holders. The engagement of the Financial Advisor, Deal Counsel or any other advisor will not be terminated by the Company without the written consent of the Preferred Majority Holders. The Board will act in good faith in exploring, evaluating and effecting such Sale, subject to their fiduciary duties.
(f)Repurchases or Other Acquisitions. Except as set forth in Section 6, the Company and its Subsidiaries shall not redeem, repurchase or otherwise acquire any shares of Series A Preferred Stock other than through procedures open to all Holders on a pro rata basis in accordance with customary procedures to be agreed between the Company and the Preferred Majority Holders.
(g)Status of Shares. Shares of Series A Preferred Stock redeemed, repurchased or otherwise acquired in accordance with this Section 6, shall return to the status of and constitute authorized but unissued shares of Preferred Stock, without classification as to series until such shares are once more classified as a particular series by the Board pursuant to the provisions of the Certificate. For the avoidance of doubt, any subsequent classification of Preferred Stock redeemed, repurchased or otherwise acquired pursuant to this Section 6 shall be subject to the limitations set forth in Section 8(b)(iii) hereof.
Section 7. Transfer of Series A Preferred Stock and Promissory Note.
(a)Subject to compliance with applicable U.S. federal and state Requirements of Law governing the Transfer of securities, (i) shares of the Series A Preferred Stock shall be transferable by the Holders to any person other than a Prohibited Transferee and (ii) prior to delivery of the Promissory Note Election Notice pursuant to Section 6(e)(iii), all or any part of the Promissory Note may be transferred by a Holder together with the corresponding proportionate amount of shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock held by such Holder to any person other than a Prohibited Transferee in accordance with the Promissory Note. The Company shall recognize and register any such Transfer contemplated by Section 7(a)(i) and (ii) on its books. The Company shall not recognize any Transfer to a
Prohibited Transferee or register any such Transfer on its books (which Transfer shall be void ab initio).
(b)The Company shall use its commercially reasonable efforts to cooperate with the Holders of the Series A Preferred Stock in connection with any Transfer to be consummated in accordance with this Section 7, including providing reasonable and customary information (i) in connection with any such Holder’s marketing efforts or any such potential transferee’s due diligence (subject to customary confidentiality restrictions) or (ii) in order to comply with applicable U.S. federal and state Requirements of Law governing the Transfer of securities.
Section 8. Voting; Protective Provisions; Limited Condition Transactions.
(a)Voting. Except as expressly set forth herein or required by applicable law, the Series A Preferred Stock shall be non-voting. Each Holder of Series A Preferred Stock will have one vote per share on any matter on which Holders of Series A Preferred Stock are entitled to vote; provided, however, the shares of Series A Preferred Stock held by an Excluded Holder shall not be entitled to vote, nor shall such shares of Series A Preferred Stock held by any such Person be deemed outstanding for purposes of voting on any amendment, waiver or consent, except as explicitly specified set forth in the proviso to Section 18 of this Agreement. On any matter on which Holders of Series A Preferred Stock are entitled to vote, the Holders shall vote separately as a single class with respect to the Series A Preferred Stock, in person or by proxy, at a meeting called for such purpose or by written consent without a meeting. The approval of any matter or action shall require the affirmative vote or consent of the Preferred Majority Holders.
(b)Protective Provisions. Notwithstanding anything to the contrary contained herein, the affirmative vote or consent of the Preferred Majority Holders will be necessary for effecting any of the following actions, whether or not such approval is required pursuant to the DGCL:
(i)any amendment, alteration, waiver or repeal of any provision of the Certificate (including this Certificate of Designation), Bylaws or any other governing document of the Company (by merger, consolidation, division or reorganization of the Company, or otherwise) in a manner that adversely affects the rights, preferences or privileges of the Series A Preferred Stock, unless such amendment, alteration or repeal is effectuated at the time of consummation of a transaction, the proceeds of which are to be applied substantially contemporaneously to the redemption in full in cash of the Series A Preferred Stock at the Redemption Price in accordance with the terms hereof such that all shares of Series A Preferred Stock shall be redeemed in connection therewith, and the effectiveness of such amendment, alteration or repeal occurs substantially contemporaneously with such redemption;
(ii)any liquidation, dissolution or winding up of the Company, its Subsidiaries, or the Company’s or any Subsidiary’s business and affairs (other than a liquidation, dissolution or winding up of a direct or indirect wholly-owned Subsidiary of
the Company in connection with a bona fide corporate reorganization that does not adversely affects the rights, preferences or privileges of the Series A Preferred Stock);
(iii)any creation, authorization or issuance (by reclassification or otherwise) of additional shares of Series A Preferred Stock, any Parity Stock, any Junior Stock (other than Common Stock), or any Senior Stock or any securities or rights convertible or exchangeable into, or exercisable for the foregoing; provided the Company shall be permitted to issue such Parity Stock, Junior Stock and/or Senior Stock to the extent the proceeds thereof are to be applied substantially contemporaneously to the redemption in full in cash of the Series A Preferred Stock at the Redemption Price in accordance with the terms hereof and provided that all shares of Series A Preferred Stock shall be redeemed in connection therewith; provided further, that Company shall be permitted to issue additional shares of Series A-3 Preferred Stock that are authorized but unissued as of the Incremental Closing Date to Authorized Investors.;
(iv)any declaration or payment of any dividends or distributions to holders of Junior Stock (other than dividends or distributions payable solely in Junior Stock) or any redemption, repayment, defeasance, or repurchase of any Junior Stock (other than (A) from employees, officers, directors, or consultants in connection with termination of services to the Company or its Subsidiaries or (B) otherwise pursuant to an equity-based benefit plan of the Company in connection with customary cashless exercise or fractional share repurchase features);
(v)any acquisition of stock, assets, or the business of any Person in one transaction or series of related transactions for consideration in excess of $50 million;
(vi)any disposition of any assets outside of the ordinary course of business (whether by merger, consolidation or otherwise) in one transaction or series of related transactions with a value in excess of $25 million, except to the extent the proceeds thereof are to be applied substantially contemporaneously to the redemption in full in cash of the Series A Preferred Stock at the Redemption Price in accordance with the terms hereof and provided that all shares of Series A Preferred Stock shall be redeemed in connection therewith;
(vii)adoption or approval of any material amendment to any equity-based benefit plan that provides for the issuance of securities other than Common Stock or options to acquire Common Stock;
(viii)the Company or its Subsidiaries, directly or indirectly, entering into or conducting any transaction or series of related transactions (including entering into any contract, agreement or other arrangement or the purchase, sale, lease or exchange of any property or the rendering of any service) with an Excluded Holder;
(ix)any sale, conveyance or transfer of all or substantially all of the property and/or assets of the Company and its Subsidiaries, taken as a whole, or any merger, consolidation, statutory exchange, share transaction or any other business
combination transaction of the Company or its Subsidiaries into or with any other “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) as a result of which such person or group shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock of the Company unless the proceeds thereof are to be applied substantially contemporaneously to the redemption in full in cash of the Series A Preferred Stock at the Redemption Price in accordance with the terms hereof and provided that all shares of Series A Preferred Stock shall be redeemed in connection therewith (for the avoidance of doubt, other than any internal reorganization among the Company and its Subsidiaries, so long as the Company is the surviving entity in any merger, consolidation, statutory exchange or other business combination transaction involving the Company);
(x)the Company and its Subsidiaries incurring, or suffering to exist, Indebtedness other than (i) (A) amounts outstanding as of the date hereof under the Financing Agreement after giving effect to Amendment No. 21 thereto, including the capitalized interest and fees as set forth on Schedule I hereto, plus (B) Amendment No. 21 Term Loans (as defined in the Financing Agreement) in an aggregate principal amount not to exceed $15 million, subject to the terms set forth in the Financing Agreement (including, for the avoidance of doubt, the Term Loan A Payment (as defined in the Financing Agreement), plus (C) any additional Term Loans (as defined in the Financing Agreement) the proceeds of which shall solely be used to (1) repay outstanding Term Loans (under and as defined in the Financing Agreement) or (2) cash collateralize or fund reimbursement obligations in respect of letters of credit under the L/C Facility or otherwise, plus (D) additional Term Loans (as defined in the Financing Agreement) in an aggregate amount not to exceed $16.5 million, in the case of clauses (i)(C) and (i)(D), solely funded by Permitted Lenders and otherwise on terms no worse to the Company and its Subsidiaries than the terms of the Financing Agreement as in effect on the Third Incremental Closing Date, plus (E) in each case under this clause (i) any capitalized or pay-in kind interest or fees, (ii) letters of credit issued by the L/C Issuer under the L/C Facility, (iii) Indebtedness incurred pursuant to clauses (b), (d), (e), (f), (g), (h), (i), (j), (m), (o), (p), (q)(ii) and (r) of the definition of “Permitted Indebtedness” under and as defined in the Financing Agreement and (iv) any debtor-in-possession financing provided by the lenders under the Financing Agreement after the commencement of any bankruptcy proceeding involving the Company and its Subsidiaries;
(xi)the appointment or removal without cause of the chief executive officer of the Company or chief technology officer of the Company; or
(xii)any agreement or commitment to do or take any action described in this Section 8(b).
For purposes of this Section 8(b), the filing in accordance with applicable law of a certificate of designations or any similar document setting forth or changing the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends
and other distributions, qualifications or other terms of any class or series of stock of the Company shall be deemed an amendment to the Certificate. Notwithstanding anything to the contrary in this Section 8(b), the affirmative vote or consent of the Preferred Majority Holders will not be necessary for effecting actions contemplated in clauses (iv), (v) and (vi) of this Section 8(b) among or between the Company and its Subsidiaries.
Subject to the limitations and conditions set forth in this Section 8(b), including, without limitations, the requirement for the consent of the Preferred Majority Holders pursuant to clause (iii) above, the number of shares of Series A Preferred Stock that may be issued after the Incremental Closing Date shall not exceed 15,000 shares (inclusive of the 5,000 shares of Series A-3 Preferred Stock that are authorized but unissued as of the Incremental Closing Date which may only be issued to Authorized Investors), which shares shall be Series A-3 Preferred Stock and shall have identical terms as the shares of Series A-3 Preferred Stock issued on the Incremental Closing Date other than, if applicable, with respect to (A) the date of issuance, (B) the issue price (which issue price, taking into account any cash or non-cash consideration (including in the form of Warrants) forming a part thereof provided to or from the Company, shall not be more favorable to the holders of such additional shares of Series A Preferred Stock (“Additional Holders”) than the issue price of the Series A-3 Preferred Stock issued to the Series A Investor), and (C) the date from which Dividends will accrue thereon (such additional shares of Series A Preferred Stock described in this paragraph, the “Incremental Shares”). The Company and each Additional Holder shall execute and deliver to the Company and the Preferred Majority Holders such documentation as the Company and the Preferred Majority Holders shall reasonably specify to evidence the Incremental Shares of such Additional Holder and the purchase thereof (including, without limitation, a purchase agreement in substantially the same form as the Share Subscription Agreement).
(c)Additional Protective Provisions. Notwithstanding anything to the contrary contained herein, the affirmative vote or consent of the A-2 and A-3 Majority Holders will be necessary for effecting any of the following actions, whether or not such approval is required pursuant to the DGCL:
(i)the appointment or removal without cause of any director designated by the majority holders of the Series A-2 Preferred Stock and Series A-3 Preferred Stock;
(ii)increase the size of the Board of Directors to more than eight (8) directors;
(iii)use the proceeds from the issuance of the Series A-3 Preferred Stock for any purpose other than general corporate purposes; provided that, at least $10 million of such proceeds shall be promptly applied by the Company, in the Company’s commercially reasonable discretion, to repurchase its outstanding Common Stock; provided, further, that (x) no more than $3 million of such proceeds may be used for such purchases of Common Stock in privately negotiated transactions or in the form of block trades and (y) the seller in any such privately negotiated transaction or block trade may not be an Affiliate of the Company; or
(iv)any agreement or commitment to do or take any action described in this Section 8(c).
Section 9. Board Designation Rights.
(a)Without limitation of the rights of the Holders under Section 11 hereof, for so long as the Series A Investor and its Affiliates own at least 50% of the shares of Series A Preferred Stock then outstanding (excluding shares of Series A Preferred Stock held by any Excluded Holder), the Series A Investor shall have the right to appoint one observer (the “Series A Investor Observer”) to the Board and any committee thereof, subject to the execution by the Series A Investor Observer of a customary confidentiality agreement with the Company. The rights of the Series A Investor and its Affiliates pursuant to this Section 9(a) may not be Transferred without the consent of the Company. The Series A Investor Observer shall serve in such capacity until such individual’s earlier death, disability, resignation or removal by the Series A Investor and shall be subject to all obligations, policies and codes of conduct applicable to the directors of the Company.
(b)The Series A Investor Observer shall have the same observation rights afforded to the lenders under the Financing Agreement (as in effect on the Third Incremental Closing Date), including (i) being timely notified of the time and place of any such meetings (including regular and special meetings) and attending (in person or, at his/her election, telephonically) all in-person meetings and to listen to the entirety of all telephonic meetings of the Board and any of its committees or sub-committees and those of its Subsidiaries, in each case in a nonvoting observer capacity and (ii) receipt of all information, notices, reports, written consents, meeting minutes and other materials (collectively, the “Board Information”) provided to the members of the Board and any of its committees or sub-committees and those of its Subsidiaries in respect of such meeting (the “Board Members”), in each case, substantially simultaneously with, and in the same manner and to the same extent as, such Board Information is given to such Board Members, including written notice of all proposed actions to be taken at any such meeting (such notice shall describe in reasonable detail the nature and substance of the matters to be discussed and/or voted upon at such meeting (or the proposed actions to be taken by written consent without a meeting)), in addition to copies of the records of the proceedings or minutes of such meeting, when provided to the members thereof. Notwithstanding the foregoing, the Company may withhold any information and exclude the Series A Investor Observer from any meeting or portion thereof, including closed or executive sessions, if the Board determines in good faith, based on the advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege or under circumstances that present a bona fide conflict of interest with respect to the applicable matter under consideration. The Company shall provide the Series A Investor Observer with reimbursement for reasonable and documented out-of-pocket costs and expenses incurred by the Series A Investor Observer in connection with the exercise of its rights and roles hereunder.
(c)The Series A Investor Observer may be removed at any time without cause by the Series A Investor, and any vacancy with respect to the Series A Investor Observer
may be filled by the Series A Investor. In the event that the Series A Investor and its Affiliates no longer own at least 50% of the shares of Series A Preferred Stock then outstanding (excluding shares of Series A Preferred Stock held by any Excluded Holder), the term of office of the Series A Investor Observer shall immediately terminate, and the Board may remove the Series A Investor Observer from the Board.
(d)If the Company fails to have an Adjusted EBITDA of at least $40 million for the 2024 fiscal year and the Holders of Series A-2 Preferred Stock and Series A-3 Preferred Stock hold Series A-2 Preferred Stock and Series A-3 Preferred Stock representing an aggregate Stated Value of at least $23,976,322.56, the A-2 and A-3 Majority Holders shall be entitled, notwithstanding anything to the contrary herein, the Certificate, the Bylaws, the Share Subscription Agreement or other agreements by or among the stockholders of the Company, to the appointment of one (1) individual of the A-2 and A-3 Majority Holders’ choosing and at such Holders’ sole discretion to the Board of Directors, not later than the date of the immediately upcoming meeting of shareholders for the election of directors. Further, if the Holders of Series A-2 Preferred Stock and Series A-3 Preferred Stock hold Series A-2 Preferred Stock and Series A-3 Preferred Stock representing an aggregate Stated Value of at least $23,976,322.56 (or, to the extent the right in the preceding sentence shall have been triggered, at least $71,928,967.69), as of January 1, 2026, the A-2 and A-3 Majority Holders shall be entitled, notwithstanding anything to the contrary herein, the Certificate, the Bylaws, the Share Subscription Agreement or other agreements by or among the stockholders of the Company, to the appointment of one (1) additional individual of the A-2 and A-3 Majority Holders’ choosing and at such Holders’ sole discretion to the Board of Directors, not later than the date of the immediately upcoming meeting of shareholders for the election of directors. In each case the directors serving immediately prior to such Board changes described in this Section 9(d) shall approve the appointment of such additional directors designated by the A-2 and A-3 Majority Holders as the case may be. If the A-2 and A-3 Majority Holders fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, under this Section 9(d), then any directorship not so filled shall remain vacant until such time as the A-2 and A-3 Majority Holders elect an individual to fill such directorship by vote or written consent.
Section 10. Financial Covenants. The Company shall not, unless the Preferred Majority Holders shall otherwise consent in writing:
(a)Minimum Consolidated EBITDA Less CapEx. Permit the result of (i) Consolidated EBITDA of the Company and its Subsidiaries for any period of consecutive fiscal quarters of the Company and its Subsidiaries for which the last fiscal quarter ends on a date set forth below minus (ii) the aggregate amount of Capital Expenditures of the Company and its Subsidiaries for such period, to be less than the amount set forth opposite such date:
| | | | | |
| Fiscal Quarter End | Consolidated EBITDA Minus Capital Expenditures |
| December 31, 2024 | $8,500,000.00 |
| | | | | |
| March 31, 2025 | $12,750,000.00 |
| June 30, 2025 | $17,482,621.10 |
| September 30, 2025 | $20,346,202.72 |
| December 31, 2025 | $24,017,692.10 |
| March 31, 2026 | $25,061,221.08 |
| June 30, 2026 | $25,326,912.50 |
| September 30, 2026 | $25,672,987.67 |
| December 31, 2026 | $25,830,576.71 |
| March 31, 2027 | $26,284,541.18 |
| June 30, 2027 | $26,762,020.82 |
| September 30, 2027 | $27,226,759.85 |
| December 31, 2027 | $27,734,105.54 |
| March 31, 2028 | $28,210,768.24 |
| June 30, 2028, and each Fiscal Quarter thereafter | $28,712,121.86 |
(b)Leverage Ratio. Permit the Leverage Ratio of the Company and its Subsidiaries as of the last day of any period of 4 consecutive fiscal quarters of the Company and its Subsidiaries for which the last fiscal quarter ends on a date set forth below to be greater than the applicable ratio set forth opposite such date:
| | | | | |
| Fiscal Quarter End | Leverage Ratio |
| December 31, 2024 | 8.625 to 1.00 |
| March 31, 2025 | 7.1875 to 1.00 |
| June 30, 2025 | 6.325 to 1.00 |
| September 30, 2025 | 5.75 to 1.00 |
| December 31, 2025 | 5.4625 to 1.00 |
| | | | | |
| March 31, 2026 | 5.175 to 1.00 |
| June 30, 2026 | 5.175 to 1.00 |
| September 30, 2026 | 5.175 to 1.00 |
| December 31, 2026 | 5.175 to 1.00 |
| March 31, 2027 | 5.175 to 1.00 |
| June 30, 2027 | 5.175 to 1.00 |
| September 30, 2027 | 5.175 to 1.00 |
| December 31, 2027 | 4.8875 to 1.00 |
| March 31, 2028 | 4.8875 to 1.00 |
| June 30, 2028, and each Fiscal Quarter thereafter | 4.60 to 1.00 |
(a) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio of the Company and its Subsidiaries as of the last day of any period of 4 consecutive fiscal quarters of the Company and its Subsidiaries for which the last fiscal quarter ends on a date set forth below to be less than the applicable ratio set forth opposite such date:
| | | | | |
| Fiscal Quarter End | Fixed Charge Coverage Ratio |
| December 31, 2024 | 0.6375 to 1.00 |
| March 31, 2025 | 0.765 to 1.00 |
| June 30, 2025 | 0.8075 to 1.00 |
| September 30, 2025 | 0.8075 to 1.00 |
| December 31, 2025 | 0.8075 to 1.00 |
| March 31, 2026 | 0.8075 to 1.00 |
| June 30, 2026 | 0.85 to 1.00 |
| | | | | |
| September 30, 2026 | 0.85 to 1.00 |
| December 31, 2026 | 0.85 to 1.00 |
| March 31, 2027 | 0.85 to 1.00 |
| June 30, 2027 | 0.85 to 1.00 |
| September 30, 2027 | 0.85 to 1.00 |
| December 31, 2027 | 0.85 to 1.00 |
| March 31, 2028 | 0.85 to 1.00 |
| June 30, 2028, and each Fiscal Quarter thereafter | 0.85 to 1.00 |
(b)Minimum Liquidity. For the period (i) commencing on the Effective Date through and including December 31, 2024, permit the unrestricted cash and Cash Equivalents (minus the aggregate amount of all trade payables or other amounts payable of the Company and its Subsidiaries at such time that constitute Excess Payables (as defined in the Financing Agreement) (excluding (A) Excess Payables (as defined in the Financing Agreement) identified to the Agents (as defined in the Financing Agreement) in writing prior to the Amendment No. 12 Effective Date (as defined in the Financing Agreement) and agreed to in writing by the Agents (as defined in the Financing Agreement) to be excluded in “Excess Payables” solely for purposes of this Section 10(d) and (B) additional Excess Payables (as defined in the Financing Agreement) in an aggregate amount not to exceed $5,600,000) of the Company and its Subsidiaries to be less than $8,500,000 for any period of five (5) consecutive Business Days and (ii) commencing on January 1, 2025 and thereafter, permit the unrestricted cash and Cash Equivalents (as defined in the Financing Agreement) (minus the aggregate amount of all trade payables or other amounts payable of the Company and its Subsidiaries at such time that constitute Excess Payables (as defined in the Financing Agreement (excluding (A) Excess Payables identified to the Agents (as defined in the Financing Agreement) in writing prior to the Amendment No. 12 Effective Date (as defined in the Financing Agreement) and agreed to in writing by the Agents to be excluded in “Excess Payables” solely for the purposes of Section 7.03(e)(ii) of the Financing Agreement and (B) during the period from January 1, 2025 through and including March 31, 2025, additional Excess Payables (as defined in the Financing Agreement in an aggregate amount not to exceed $2,800,000) of the Company and its Subsidiaries to be less than $10,625,000 for any period of five (5) consecutive Business Days.
Section 11.Non-Compliance Events. Following the occurrence and during the continuance of any Non-Compliance Event, the Stated Value and the Accrued Dividends shall each accrete by an additional 0.50% each month during the continuance of such Non-Compliance Event (such rate increasing incrementally by an additional 0.50% on each one-month month anniversary of the occurrence thereof), which accreted amounts shall thereafter
constitute “Accrued Dividends” for purposes hereof (a “Non-Compliance Step-Up”); provided, that any Non-Compliance Event resulting solely from a Financial Covenant Default shall in no event result in an aggregate Dividend Rate, including any Non-Compliance Step-Up, greater than twenty-seven and one half percent (27.5%) per annum.
Section 12. Information Rights and Inspection Rights.
(a)The Company shall provide to the Holders:
(i)as soon as available, and in any event within 30 days after the end of each fiscal month of the Company and its Subsidiaries (or 45 days in the case of each fiscal month of the Company and its Subsidiaries ending on December 31st of each Fiscal Year), commencing with the first fiscal month of the Company and its Subsidiaries ending after the date hereof, internally prepared consolidated and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows as at the end of such fiscal month, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such fiscal month, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year, and (B) the Projections, all in reasonable detail and certified by an Authorized Officer of the Company as fairly presenting, in all material respects, the financial position of the Company and its Subsidiaries as at the end of such fiscal month and the results of operations, retained earnings and cash flows of the Company and its Subsidiaries for such fiscal month and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements furnished to the Preferred Majority Holders, subject to the absence of footnotes and normal year-end adjustments;
(ii)as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Company and its Subsidiaries commencing with the first Fiscal Quarter of the Company and its Subsidiaries ending after the date hereof, consolidated and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows of the Company and its Subsidiaries as at the end of such quarter, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year and (B) the Projections, all in reasonable detail and certified by an Authorized Officer of the Company as fairly presenting, in all material respects, the financial position of the Company and its Subsidiaries as of the end of such quarter and the results of operations and cash flows of the Company and its Subsidiaries for such quarter and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements of the Company and its Subsidiaries furnished to the Preferred Majority Holders, subject to the absence of footnotes and normal year-end adjustments;
(iii)as soon as available, and in any event within 120 days after the end of each Fiscal Year of the Company and its Subsidiaries, consolidated and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows of the Company and its Subsidiaries as at the end of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year, and (B) the Projections, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Company and satisfactory to the Preferred Majority Holders (which opinion shall be without (1) a “going concern” or like qualification or exception, (2) any qualification or exception as to the scope of such audit, or (3) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 10), together with a written statement of such accountants (x) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge of the existence of a Non-Compliance Event under Section 10 and (y) if such accountants shall have obtained any knowledge of the existence of an Event of Default or such Default, describing the nature thereof;
(iv)simultaneously with the delivery of the financial statements of the Company and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 12(a), a certificate of an Authorized Officer of the Company in substantially the form acceptable to the Preferred Majority Holders stating that such Authorized Officer has reviewed the provisions of Third A&R Certificate of Designation and the other Transaction Documents (as defined in the Amendment) and has made or caused to be made under his or her supervision a review of the condition and operations of the Company and its Subsidiaries during the period covered by such financial statements with a view to determining whether the Company and its Subsidiaries were in compliance with all of the provisions of Third A&R Certificate of Designation and such Transaction Documents (as defined in the Amendment) at the times such compliance is required hereby and thereby, and that such review has not disclosed, and such Authorized Officer has no knowledge of, the occurrence and continuance during such period of a Non-Compliance Event or, if a Non-Compliance Event had occurred and continued or is continuing, describing the nature and period of existence thereof and the action which the Company and its Subsidiaries propose to take or have taken with respect thereto,
(v)in the case of the delivery of the financial statements of the Company and its Subsidiaries required by clauses (ii) and (iii) of this Section 12(a), (1) attaching a schedule showing the calculation of the financial covenants specified in Section 10, (2) attaching a schedule showing the calculation of Unadjusted EBITDA, Consolidated EBITDA and Management EBITDA (each as defined in the Financing Agreement) of the Company and its Subsidiaries for the period of four (4) Fiscal Quarters then ended and (3) including a copy of the discussion and analysis of the financial
condition and results of operations of the Company and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the Projections for such period and the figures for the corresponding period in the previous Fiscal Year included in the Company’s most recent quarterly report filed on Form 10-Q or its most recent annual report filed on Form 10-K, as applicable, and
(vi)in the case of the delivery of the financial statements of the Company and its Subsidiaries required by clause (iii) of this Section 12(a), attaching (1) a summary of all material insurance coverage maintained as of the date thereof by the Company or any of its Subsidiaries, together with such other related documents and information as the Preferred Majority Holders may reasonably require and (2) the calculation of the Excess Cash Flow (as defined in the Financing Agreement) in accordance with the terms of Section 2.05(c)(i) of the Financing Agreement;
(vii)as soon as available and in any event within 30 days after the end of each fiscal month of the Company and its Subsidiaries, the following reports in form and detail satisfactory to the Preferred Majority Holders and certified by an Authorized Officer of the Company as being accurate and complete: (A) reports listing all accounts receivable of the Company and its Subsidiaries (other than airline customer accounts receivable) as of such day, which shall include the amount and age of each such account receivable, showing separately those which are more than 30, 60 and 90 days past due, together with such other information as the Preferred Majority Holders may reasonably request regarding such accounts receivable and (B) reports listing all accounts payable of the Company and its Subsidiaries as of each such day which shall include the amount and age of each such account payable, together with such other information as the Preferred Majority Holders may reasonably request regarding such accounts payable;
(viii)(A) as soon as available, and in any event within 30 days after the end of each fiscal month of the Company and its Subsidiaries, a certificate of an Authorized Officer of the Company substantially in a form acceptable to the Preferred Majority Holders, (B) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Company and its Subsidiaries, a certificate of an Authorized Officer of the Company substantially in a form acceptable to the Preferred Majority Holders, and (C) as soon as available, and in any event within 120 days after the end of each Fiscal Year of the Company and its Subsidiaries, a certificate of an Authorized Officer of the Company substantially in a form acceptable to the Preferred Majority Holders;
(ix)as soon as available and in any event not later than 30 days after the end of each Fiscal Year, a certificate of an Authorized Officer of the Company attaching Projections for the Company and its Subsidiaries, supplementing and superseding the Projections previously required to be delivered pursuant to this Agreement, presented using a monthly format and otherwise in form and substance satisfactory to the Preferred Majority Holders, for the immediately succeeding Fiscal Year for the Company and its Subsidiaries;
(x)promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of the Company or any of its Subsidiaries other than routine inquiries by such Governmental Authority;
(xi)as soon as possible, and in any event within 3 days after the date that the Company or any of its Subsidiaries has actual knowledge of a Non-Compliance Event or the occurrence of any event or development that could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Company setting forth the details of such Non-Compliance Event or other event or development having a Material Adverse Effect and the action which the affected the Company or its Subsidiaries proposes to take with respect thereto;
(xii)as soon as possible and in any event: (A) at least 10 days prior to any event or development that could reasonably be expected to result in or constitute an ERISA Event (as defined in the Financing Agreement), and, to the extent not reasonably expected, within 5 days after the occurrence of any such ERISA Event (as defined in the Financing Agreement), notice of such ERISA Event (as defined in the Financing Agreement) (in reasonable detail), (B) within three days after receipt thereof by Company or any of its Subsidiaries or any of their ERISA Affiliates (as defined in the Financing Agreement) from the PBGC (as defined in the Financing Agreement), copies of each notice received by the Company or any of its Subsidiaries or any of their ERISA Affiliates (as defined in the Financing Agreement) of the PBGC’s intention to terminate any Pension Plan (as defined in the Financing Agreement) or to have a trustee appointed to administer any Pension Plan (as defined in the Financing Agreement), (C) within 10 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Pension Plan (as defined in the Financing Agreement), (D) within 3 days after receipt thereof by the Company or any of its Subsidiaries or any of their ERISA Affiliates (as defined in the Financing Agreement) from a sponsor of a Multiemployer Plan (as defined in the Financing Agreement) or from the PBGC (as defined in the Financing Agreement), a copy of each notice received by the Company or any of its Subsidiaries or any of their ERISA Affiliates (as defined in the Financing Agreement)concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA (as defined in the Financing Agreement), and (E) within 10 days after the Company or any of its Subsidiaries sends notice of a plant closing or mass layoff (as defined in WARN) to employees, copies of each such notice sent by the Company or any of its Subsidiaries;
(xiii)promptly after the commencement thereof but in any event not later than 5 days after service of process with respect thereto on, or the obtaining of knowledge thereof by, the Company or any of its Subsidiaries, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(xiv)as soon as possible and in any event within 5 days after the execution, receipt or delivery thereof, (A) copies of any material notices (including, without limitation, default notices), reports, statements or other material information that the Company or any of its Subsidiaries executes, receives or delivers in connection with any Falcon Acquisition Document (as defined in the Financing Agreement), Kilimanjaro Acquisition Document (as defined in the Financing Agreement), Rocketrip Acquisition Document (as defined in the Financing Agreement), Orinter Acquisition Document (as defined in the Financing Agreement), Interep Acquisition Document (as defined in the Financing Agreement), Consolid Mexico Acquisition Document (as defined in the Financing Agreement), Skypass Acquisition Document (as defined in the Financing Agreement) or any other Material Contract (as defined in the Financing Agreement) or any other acquisition document executed or delivered in connection with a Permitted Acquisition (as defined in the Financing Agreement) and (B) copies of any amendments, restatements, supplements or other modifications, waivers, consents or forbearances that the Company or any of its Subsidiaries executes, receives or delivers with respect to any Falcon Acquisition Document (as defined in the Financing Agreement), any Kilimanjaro Acquisition Document (as defined in the Financing Agreement), any Rocketrip Acquisition Document (as defined in the Financing Agreement), any Orinter Acquisition Document (as defined in the Financing Agreement), any Interep Acquisition Document (as defined in the Financing Agreement), any Consolid Mexico Acquisition Document (as defined in the Financing Agreement), any Skypass Acquisition Document (as defined in the Financing Agreement) or any other Material Contract (as defined in the Financing Agreement) or any other acquisition document executed or delivered in connection with a Permitted Acquisition (as defined in the Financing Agreement);
(xv)commencing on the Amendment No. 13 Effective Date (as defined in the Financing Agreement) and on each day thereafter until the Termination Date (as defined in the Financing Agreement), a report (which may be delivered by electronic mail) in the format, with the details and in the frequency as agreed to by the Permitted Lenders under, and as defined in, the Financing Agreement in writing prior to the Amendment No. 13 Effective Date (as defined in the Financing Agreement);
(xvi)as soon as possible and in any event within 5 days after execution, receipt or delivery thereof, copies of any material notices that the Company or any of its Subsidiaries executes or receives in connection with the sale or other Disposition (as defined in the Financing Agreement) of the Equity Interests of, or all or substantially all of the assets of, the Company or any of its Subsidiaries;
(xvii)copies of all reports or other information delivered to the Company’s or any of its Subsidiaries boards of directors of similar governing bodies, to the extent not otherwise delivered hereunder copies of all reports required to be delivered under Section 9;
(xviii)promptly after (A) the sending or filing thereof, copies of all statements, reports and other information the Company or any of its Subsidiaries sends to
any holders of its Indebtedness or its securities or files with the SEC (as defined in the Financing Agreement) or any national (domestic or foreign) securities exchange and (B) the receipt thereof, a copy of any material notice received from any holder of its Indebtedness;
(xix)promptly upon receipt thereof, copies of all financial reports (including, without limitation, management letters), if any, submitted to the Company or any of its Subsidiaries by its auditors in connection with any annual or interim audit of the books thereof;
(xx)promptly upon reasonable request, information and documentation reasonably requested by the Preferred Majority Holders for purposes of compliance with the Beneficial Ownership Regulation;
(xxi)simultaneously with the delivery of the financial statements of the Company and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 12(a), if, as a result of any change in accounting principles and policies from those used in the preparation of the Financial Statements, the consolidated financial statements of the Company and its Subsidiaries delivered pursuant to clauses (i), (ii) and (iii) of this Section 12(a) will differ from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to the Preferred Majority Holders;
(xxii)(A) as soon as available and in any event within 30 days after the end of each fiscal month of the Company and its Subsidiaries, reports in form and detail satisfactory to the Preferred Majority Holder and certified by an Authorized Officer (as defined in the Financing Agreement) of the Company as being accurate and complete listing all airline customer accounts receivable of the Company and its Subsidiaries as of such day, which shall include the amount and age of each such airline customer account receivable, showing separately those which are up to 90 days, 90 to 120 days, 121 to 150 days, 151 to 180 days, 181 to 270 days, 271 to 360 days and over 361 days past the date such airline customer accounts receivable were created, together with such other information as the Preferred Majority Holders may reasonably request regarding such airline customer accounts receivable and (B) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Company and its Subsidiaries, a schedule in form and detail satisfactory to the Preferred Majority Holders describing all Liens (as defined in the Financing Agreement), set-offs, defenses and counterclaims with respect to such accounts receivable outstanding at the end of such Fiscal Quarter, together with a reconciliation of such schedule with the schedule delivered to the Preferred Majority Holders pursuant to this clause (xxii)(B) for the immediately preceding Fiscal Quarter and such other information as the Agents may reasonably request with respect to such Liens (as defined in the Financing Agreement), set-offs, defenses and counterclaims;
(xxiii)promptly upon reasonable request, such other information concerning the condition or operations, financial or otherwise, of the Company or any of its Subsidiaries as the Preferred Majority Holder may from time to time may reasonably request.
The Preferred Majority Holders hereby acknowledges and agrees that the Company and its Subsidiaries may elect to or be required to restate historical financial statements as the result of the impact of non-recurring events (e.g., hurricane, polar vortex, fire, other natural disaster, pandemic, etc.), and that such restatements will not result in a Non-Compliance Event. The Company shall permit the Series A Investor and its Affiliates (and their respective representatives) to visit and inspect any of its properties and examine and, to the extent reasonable, make abstracts from any of its books and records and to discuss the business, operations, properties and financial and other condition of the Company and its Subsidiaries with officers of such Persons and with the Company’s independent certified public accountants, in each case at any reasonable time, upon reasonable notice, and as often as may reasonably be desired; provided that representatives of the Company may be present during any such visits, discussions and inspections.
(b)Notwithstanding anything to the contrary in this Section 12, neither the Company nor its Subsidiaries will be required by the terms of this Section 12 to disclose or permit the inspection or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Holders (or their respective representatives) is prohibited by Requirements of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.
(c)Documents required to be delivered pursuant to this Section 12 may at the Company’s option be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address specified by written notice to the Holders from time to time; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website to which each Holder has access (whether a commercial or third-party website).
(d)Upon the request of the Preferred Majority Holders (which request, so long as no Non-Compliance Event shall have occurred and be continuing, shall not be made more than once during each Fiscal Quarter of the Company and its Subsidiaries), the Company shall participate in an in-person or virtual meeting (at the Preferred Majority Holders discretion) with the Preferred Majority Holders at the Company’s corporate offices (or at such other location (or by such other means (including without limitation, conference call) as may be agreed to by the Company and the Preferred Majority Holders) at such time as may be agreed to by the Company and the Preferred Majority Holders.
Section 13. Transfer Agent, Registrar and Paying Agent. The Transfer Agent and the Paying Agent shall initially be Continental Stock Transfer & Trust Company, a New York
corporation. The Company may, in its sole discretion, appoint any other Person to serve as Transfer Agent or Paying Agent for the Series A Preferred Stock and thereafter may remove or replace such other Person at any time. Upon any such appointment or removal, the Company shall send notice thereof to the Holders.
Section 14. Replacement Certificates. If physical certificates evidencing the Series A Preferred Stock are issued, the Company shall replace any mutilated certificate at the Holder’s expense upon surrender of that certificate to the Transfer Agent. The Company shall replace certificates that become destroyed, stolen or lost at the Holder’s expense upon delivery to the Company and the Transfer Agent of evidence satisfactory to the Company and the Transfer Agent that the certificate has been destroyed, stolen or lost, together with any indemnity that may be required by the Transfer Agent and the Company.
Section 15. Tax Matters.
(a)Withholding. The Company and its Paying Agent shall be entitled to deduct and withhold taxes on all payments and distributions (or deemed distributions) on the Series A Preferred Stock to the extent required by applicable law. To the extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of this Certificate of Designation as having been paid to the Person in respect of which such deduction or withholding was made. In the event the Company previously remitted any amounts to a Governmental Authority on account of taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution) with respect to a share of Series A Preferred Stock, the Company shall be entitled (i) to offset any such amounts against any amounts otherwise payable in respect of such share of Series A Preferred Stock or (ii) to require the Person in respect of whom such deduction or withholding was made to reimburse the Company for such amounts (and such Person shall promptly so reimburse the Company upon demand).
(b)Transfer Taxes. The Company shall pay any and all documentary, stamp and similar issue or transfer tax (“Transfer Tax”) due on the issue of shares of Series A Preferred Stock or certificates representing such shares or securities. However, the Company shall not be required to pay any Transfer Tax that may be payable in respect of the issue or delivery (or any transfer involved in the issue or delivery) of Series A Preferred Stock to a beneficial owner other than the beneficial owner of the Series A Preferred Stock immediately prior to the event pursuant to which such issue or delivery is required, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Company the amount of any such Transfer Tax (to the extent the Company bore such Transfer Tax) or has established to the satisfaction of the Company that such Transfer Tax has been paid or is not payable.
Section 16. Notices. All notices referred to herein shall be in writing and, unless otherwise specified herein, all notices hereunder shall be deemed to have been given upon the earlier of receipt thereof or three (3) Business Days after the mailing thereof if sent by registered or certified mail (unless first class mail shall be specifically permitted for such notice under the terms of this Certificate of Designation) with postage prepaid, addressed: (i) if to the Company, (a) if sent by mail, to its office at Mondee Holdings, Inc., 10800 Pecan Park Blvd., Suite 315,
Austin, Texas 78750, Attention: Jesus Portillo (jportillo@mondee.com), or (b) if sent by electronic mail, to such electronic mail address as the Company shall have designated in writing to the Holders, (ii) if to any Holder, to such Holder at the address and electronic mail address of such Holder as listed in the stock record books of the Company (which, for all purposes hereunder, may include the records of the Transfer Agent) or (iii) to such other address as the Company or any such Holder, as the case may be, shall have designated by notice similarly given.
Section 17. Facts Ascertainable. When the terms of this Certificate of Designation refer to a specific agreement or other document to determine the meaning or operation of a provision hereof, the Company shall maintain a copy of such agreement or document at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request therefor. The Company shall also maintain a written record of the Issuance Date, the number of shares of Series A Preferred Stock issued to a Holder and the date of each such issuance, the Stated Value and Accrued Dividends per share of Series A Preferred Stock and the Dividend Rate in effect from time to time and shall furnish such written record free of charge to any Holder who makes a request therefor.
Section 18. Amendment; Waiver. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any right of the Holders of Series A Preferred Stock granted hereunder may be amended or waived as to all shares of Series A Preferred Stock (and the Holders thereof) upon the written consent of the Preferred Majority Holders; provided that, (i) any amendment, modification, or waiver that, by its terms, would treat any Holder or Holders (including any Excluded Holder), in its capacity as such, either adversely or less beneficially relative to any other Holder shall require the prior written consent of such adversely or less beneficially affected Holder, and (ii) other than ministerial changes, without the written consent of each Holder adversely affected thereby, no amendment, modification, or waiver shall:
(a)reduce the Dividend Rate, extend any Dividend Payment Date (except in accordance with the proviso to such definition as in effect on the Third Incremental Closing Date) or amend Section 4 (including any other defined term used in such section, to the extent relating thereto);
(b)reduce the Stated Value or the Accrued Dividend or amend Section 5 (including any other defined term used in such section, to the extent relating thereto); provided that the Preferred Majority Holders shall be permitted to amend, modify or waive Non-Compliance Events and the effects thereof without the written consent of each adversely affected Holder;
(c)reduce the Redemption Price (other than as a result of any amendment, modification or waiver of the effect of a Non-Compliance Event in accordance with clause (b) above) or amend Section 6 (including any other defined term used in such section, to the extent relating thereto), other than the penultimate and final sentences of Section 6(b) (which may be amended, modified or waived with the consent of the Preferred Majority Holders and will not require the consent of each adversely affected Holder);
(d)amend Section 7(a) (including any defined term used in such section to the extent relating thereto); provided that the definition of “Prohibited Transferee” may be amended, modified or waived with the consent of the Preferred Majority Holders and will not require the consent of each adversely affected Holder;
(e)amend Section 2 (including any defined term used in such section to the extent relating thereto); or
(f)amend either (x) clause (i) of the proviso to this Section 18, or (y) the foregoing clauses (a) through (e) or this clause (f).
Section 19. Severability. If any term of the Series A Preferred Stock set forth herein is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other terms set forth herein which can be given effect without the invalid, unlawful or unenforceable term will, nevertheless, remain in full force and effect, and no term herein set forth will be deemed dependent upon any other such term unless so expressed herein.
Section 20. Interpretation. When a reference is made in this Certificate of Designation to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to this Certificate of Designation unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Certificate of Designation, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Certificate of Designation shall refer to this Certificate of Designation as a whole and not to any particular provision of this Certificate of Designation unless the context requires otherwise. The terms “or,” “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” All terms defined in this Certificate of Designation shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Certificate of Designation are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means, unless otherwise specified, such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to the lawful money of the United States. When calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Certificate of Designation, the date that is the reference date in calculating such period shall be excluded (unless otherwise required by law or specified herein, if the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day).
Section 21. Expenses; Indemnity.
(a)For so long as the Series A Preferred Stock remains outstanding, the Company shall reimburse the Holders for each of their documented reasonable out-of-pocket costs, fees and expenses from time to time in responding to any request for approval under the Certificate (including this Certificate of Designation), enforcing their rights under the Certificate (including this Certificate of Designation), and/or amending the Certificate (including this Certificate of Designation); provided, that, the Company shall not be obligated to reimburse the expenses of more than one single counsel for all Holders taken as a whole (such counsel to be selected by the Preferred Majority Holders in their sole discretion) and to the extent reasonably necessary, regulatory counsel and a single local counsel in each relevant jurisdiction.
(b)The Company shall indemnify and hold harmless the Holders, each of their respective Affiliates and controlling persons and each of their respective directors, officers, employees, partners, agents, advisors and other representatives (each, an “Indemnified Person”) from and against any and all losses, claims, damages and liabilities to which any such Indemnified Person may become subject arising out of or in connection with any claim, litigation, investigation or proceeding relating to the Certificate (including this Certificate of Designation) (a “Proceeding”), regardless of whether any Indemnified Person is a party thereto or whether such Proceeding is brought by the Company, any of its Affiliates or any third party, and to reimburse each Indemnified Person within thirty (30) days following written demand therefor (together with reasonably detailed backup documentation supporting such reimbursement request) for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating or defending any Proceeding; provided, that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they arise from the willful misconduct, bad faith or gross negligence of, or material breach of the Certificate (including this Certificate of Designation) or the Share Subscription Agreement by, such Indemnified Person, in each case as determined by a final non-appealable judgment of a court of competent jurisdiction.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Designation this ___ day of __________.
| | | | | | | | |
| |
| By: | |
| | Name: Prasad Gundumogula Title: Chief Executive Officer |
Schedule I
(see attached)
Exhibit A
Form of Promissory Note
THE RIGHTS REPRESENTED BY THIS NOTE AND THE SECURITIES INTO WHICH THE DEBT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ARE BEING ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION OF THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR UNLESS SUCH REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
PROMISSORY NOTE
Dated: _________
FOR VALUE RECEIVED, Mondee Holdings, Inc. (f/k/a ITHAX Acquisition Corp.), a Delaware corporation (the “Company”), hereby unconditionally promises to pay to the order of [Applicable Holder] or its successors and permitted assigns (the “Holder”) the Put Price plus the Accrued Dividends and accrued and unpaid dividends since the most recent Dividend Payment Date for the number of shares of Series A Preferred Stock to which this Note relates, in each case as of the date of delivery of the Promissory Note Election Notice (the “Principal”), together with Interest thereon, which may be waived by the Holder at its sole discretion, from the date of this Promissory Note (this “Note”) until all unpaid Principal and accrued and unpaid Interest thereon and other amounts payable under this Note have been paid in full under this Note. Interest shall accrue on all outstanding Principal at the Interest Rate on a daily basis from the date of delivery of the Promissory Note Election Notice (“Interest”) until all outstanding Principal and accrued and unpaid Interest thereon under this Note are paid in full (all outstanding Principal, accrued and unpaid Interest thereon payable under this Note from time to time are collectively referred to herein as the “Debt”). Interest shall be calculated on the basis of a 365-day year.
This Note is referenced in, and has been issued as of the date hereof pursuant to, that certain Third Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series A-1, Series A-2 and Series A-3 Preferred Stock dated as of [●], 2024 (“Certificate of Designation”). This Note becomes effective upon the Holder delivering the Promissory Note Election Notice pursuant to Section 6(e)(iii) of the Certificate of Designation. Each capitalized term used herein and not otherwise defined herein has the meaning ascribed to such term in the Certificate of Designation.
1.Payment.
(a)Payment on Maturity; Interest Payments. All outstanding Principal and Interest and other amounts payable under this Note shall be due and payable immediately on demand (the date of such demand being the “Maturity Date”). Interest shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year (each, an “Interest Payment Date”) by no later than 5:00 p.m., New York City time, on each such Interest Payment Date, with the first payment of Interest due and payable on the first such date to occur following the effective date of this Note; provided, however, that if any Interest Payment Date would otherwise occur on a day that is not a Business Day, such Interest Payment Date shall instead be on the immediately succeeding Business Day. For the avoidance of doubt, in no event shall interest accrue at an Interest Rate greater than (i) 20% per annum or (ii) the maximum rate of interest allowed by applicable law. Interest and other amounts payable pursuant to this Note shall accrue whether or not there are funds legally available for the payment thereof, whether the Company has any earnings or net profits, and whether or not the payment or accrual of Interest or such other amounts is restricted by the terms of any of the Company’s Indebtedness outstanding at any time.
(b)Payment Procedure. Payments of Principal, Interest and all other amounts due pursuant to this Note shall be made by wire transfer of immediately available funds to an account designated by the Holder.
(c)Interest Rate Adjustment. If the Company has not paid and does not repay the Debt to the Holder, on or before the date that is one (1) Business Day following (i) the Maturity Date, or (ii) if applicable, an Events of Default (as defined below) beyond the applicable cure periods, if any, provided therefor, interest on the aggregate outstanding Principal and accrued and unpaid Interest shall, subject to the maximum rate of interest allowed by applicable law, accrue in arrears at a rate equal to the Interest Rate, compounded quarterly, with such rate increasing by 0.5% per month.
2.Rank. The Debt shall be deemed to rank (a) senior to all classes of Common Stock, Preferred Stock, and to all other classes and series of Capital Stock of the Company established after the Original Issue Date (collectively, the “Securities”), (b) pari passu with (i) all unsecured Indebtedness and liabilities of the Company outstanding on the date this Note becomes effective or incurred thereafter and (ii) other promissory note(s) issued pursuant to the Certificate of Designation and (c) junior to all secured Indebtedness or liabilities of the Company to the extent of collateral securing such Indebtedness or liabilities.
3.Negative Covenants. So long as any amount of Debt remains unpaid under this Note, the Company may not, either directly or indirectly by amendment, merger, consolidation or otherwise, do, take, or cause to be taken, or enter into any contract or arrangement to do, take, or cause to be taken, any of the following actions, without the prior written consent of the Majority Holders, and any such act, contract or arrangement entered into without such consent shall be null and void ab initio, and of no force or effect:
(a)any amendment, alteration, waiver or repeal of any provision of the Certificate (including the Certificate of Designation), Bylaws or any other governing document of the Company (by merger, consolidation, division or reorganization of the Company, or otherwise) in a manner that adversely affects the rights, preferences or privileges of this Note, unless such amendment, alteration or repeal is effectuated at the time of consummation of a transaction, the proceeds of which are to be applied substantially contemporaneously to the repayment in full in
cash of all the amounts payable under this Note in accordance with the terms hereof such that this Note shall be fully repaid in connection therewith, and the effectiveness of such amendment, alteration or repeal occurs substantially contemporaneously with such repayment;
(b)any liquidation, dissolution or winding up of the Company, its Subsidiaries, or the Company’s or any Subsidiary’s business and affairs (other than a liquidation, dissolution or winding up of a direct or indirect wholly-owned Subsidiary of the Company in connection with a bona fide corporate reorganization that does not adversely affects the priority, seniority, rights, preferences or privileges of this Note);
(c)any creation, authorization or issuance (by reclassification or otherwise) of additional shares of Series A Preferred Stock, any Parity Stock, any Junior Stock (other than Common Stock), or any Senior Stock or any securities or rights convertible or exchangeable into, or exercisable for the foregoing; provided the Company shall be permitted to issue such Parity Stock, Junior Stock and/or Senior Stock to the extent the proceeds thereof are to be applied substantially contemporaneously to the repayment in full in cash of this Note in accordance with the terms hereof and provided that this Note shall be repurchased in connection therewith;
(d)any declaration or payment of any dividends or distributions to holders of Senior Stock, Parity Stock or Junior Stock (other than dividends or distributions payable solely in Junior Stock) or any redemption, repayment, defeasance, or repurchase of any Senior Stock, Parity Stock or Junior Stock (other than (A) from employees, officers, directors, or consultants in connection with termination of services to the Company or its Subsidiaries or (B) otherwise pursuant to an equity-based benefit plan of the Company in connection with customary cashless exercise or fractional share repurchase features);
(e)any acquisition of stock, assets, or the business of any Person in one transaction or series of related transactions for consideration in excess of $50 million;
(f)any disposition of any assets outside of the ordinary course of business (whether by merger, consolidation or otherwise) in one transaction or series of related transactions with a value in excess of $25 million, except to the extent the proceeds thereof are to be applied substantially contemporaneously to the repayment in full in cash of all amounts payable under this Note in accordance with the terms hereof and provided that this Note shall be repaid in connection therewith;
(g)adoption or approval of any material amendment to any equity-based benefit plan that provides for the issuance of securities other than Common Stock or options to acquire Common Stock;
(h)the Company or its Subsidiaries, directly or indirectly, entering into or conducting any transaction or series of related transactions (including entering into any contract, agreement or other arrangement or the purchase, sale, lease or exchange of any property or the rendering of any service) with an Excluded Holder;
(i)any sale, conveyance or transfer of all or substantially all of the property and/or assets of the Company and its Subsidiaries, taken as a whole, or any merger, consolidation, statutory exchange, share transaction or any other business combination transaction of the Company or its Subsidiaries into or with any other “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) as a result of which such person or group shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock of the Company unless the proceeds thereof are to be applied substantially contemporaneously to the repayment in full in cash of all amounts payable under this Note in accordance with the terms hereof and provided that this Note shall be repaid in connection therewith (for the avoidance of doubt, other than any internal reorganization among the Company and its Subsidiaries, so long as the Company is the surviving entity in any merger, consolidation, statutory exchange or other business combination transaction involving the Company);
(j)the Company and its Subsidiaries incurring, or suffering to exist, Indebtedness other than (i) (A) amounts outstanding as of [●], 2024, under the Financing Agreement after giving effect to Amendment No. 21 thereto, including the capitalized interest and fees as set forth on Schedule I of the Certificate of Designation, plus (B) Amendment No. 21 Term Loans (as defined in the Financing Agreement) in an aggregate principal amount not to exceed $15 million, subject to the terms set forth in the Financing Agreement (including, for the avoidance of doubt, the Term Loan A Payment (as defined in the Financing Agreement), plus (C) any additional Term Loans (as defined in the Financing Agreement) the proceeds of which shall solely be used to (1) repay outstanding Term Loans (under and as defined in the Financing Agreement) or (2) cash collateralize or fund reimbursement obligations in respect of letters of credit under the L/C Facility or otherwise, plus (D) additional Term Loans (as defined in the Financing Agreement) in an aggregate amount not to exceed $16.5 million, in the case of clauses (i)(C) and (i)(D), solely funded by Permitted Lenders and otherwise on terms no worse to the Company and its Subsidiaries than the terms of the Financing Agreement as in effect on the Third Incremental Closing Date, plus (E) in each case under this clause (i) any capitalized or pay-in kind interest or fees, (ii) letters of credit issued by the L/C Issuer under the L/C Facility, (iii) Indebtedness incurred pursuant to clauses (b), (d), (e), (f), (g), (h), (i), (j), (m), (o), (p), (q)(ii) and (r) of the definition of “Permitted Indebtedness” under and as defined in the Financing Agreement and (iv) any debtor-in-possession financing provided by the lenders under the Financing Agreement after the commencement of any bankruptcy proceeding involving the Company and its Subsidiaries;
(k)the appointment or removal without cause of the chief executive officer of the Company, chief technology officer of the Company, or any director designated by the Series A-2 and A-3 Majority Holders pursuant to the Certificate of Designation;
(l)increase the size of the Board of Directors of the Company to more than eight (8) directors;
(m)use the proceeds from the issuance of the Series A-3 Preferred Stock for any purpose other than general corporate purposes; provided that, at least $10 million of such proceeds shall have been promptly (from the date of the issuance of the Series A-3 Preferred
Stock) applied by the Company, in the Company’s commercially reasonable discretion, to repurchase its outstanding Common Stock; provided, further, that (x) no more than $3 million of such proceeds may be used for such purchases of Common Stock in privately negotiated transactions or in the form of block trades, and (y) the seller in any such privately negotiated transaction or block trade may not be an Affiliate of the Company; or
(n)any agreement or commitment to do or take any action described in this Section 3.
4.Events of Default. The following events are referred to herein as “Events of Default”:
(a)The Company fails to make any payment called for by this Note and such failure shall continue unremedied for a period of three (3) Business Days;
(b)the Company’s breach of any covenant under this Note, unless such failure shall be cured to the reasonable satisfaction of the Holder within three (3) Business Days after the notice thereof by the Holder to the Company;
(c)this Note shall cease for any reason (other than termination thereof in accordance with its terms) to be enforceable in accordance with its terms or in full force and effect;
(d)the entry of one or more judgments or decrees against the Company or any of its Subsidiaries involving in the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) in excess of $10,000,000, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof;
(e)the occurrence of a Change of Control;
(f)an involuntary petition being filed against the Company under Title 11 of the U.S. Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy or other similar law (unless such petition is dismissed or discharged within 60 days), or a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) being appointed to take possession, custody or control of any property of the Company; or
(g)the Company (a) files a petition seeking relief under Title 11 of the U.S. Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy or other similar law, or (b) consents to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of any property of Company.
5.Remedies.
(a)Event of Default. Upon the occurrence and during the continuance of an Event of Default beyond the applicable cure periods, if any, provided therefor, the entire Debt then
outstanding will at once become due and payable without presentation, protest or further demand or notice of any kind, all of which are hereby expressly waived, and the Holder may proceed to enforce payment of such balance or part thereof employing all remedies available to it in law or equity until the Debt is satisfied in full.
(b)All Remedies Available. The Holder may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, either for specific performance of any covenant or condition contained in this Note or in any instrument or assignment delivered to the Holder pursuant to this Note, or in aid of the exercise of any power granted in this Note or any such instrument or assignment.
(c)No Waiver of Remedies. For the avoidance of doubt, the occurrence of an Event of Default does not preclude the Holder from exercising its right to require payment pursuant to provisions of Section 1(a) in the form of setting the Maturity Date by demand. The Holder’s failure to exercise any remedy available to the Holder will not constitute a waiver of the right to exercise the same in the event of any subsequent default.
6.Definitions. As used herein, terms not otherwise defined in this Note shall have the following meanings:
“Company” has the meaning set forth in the Preamble of this Note.
“Debt” has the meaning set forth in the Preamble of this Note.
“Dollar” and “$” mean lawful money of the United States of America from time to time.
“Events of Default” has the meaning set forth in Section 4 of this Note.
“Holder” has the meaning set forth in the Preamble of this Note.
“Interest” has the meaning set forth in the Preamble of this Note.
“Interest Payment Date” has the meaning set forth in Section 1(a) of this Note.
“Interest Rate” means the Dividend Rate unless otherwise waived or lessened at the sole discretion of the Holder.
“Majority Holders” means the holders of a majority of the aggregate principal amount outstanding under this Note and any other comparable notes issued under the Certificate of Designation.
“Principal” has the meaning set forth in the Preamble of this Note.
“Securities” has the meaning set forth in Section 2 of this Note.
For all purposes relevant to this Note: the terms defined in the singular have a comparable meaning when used in the plural and vice versa; whenever the words “include,” “includes,” or
“including” are used, they are deemed followed by the words “without limitation;” and all references to number of shares, amounts per share, prices, and the like shall be subject to appropriate proportional adjustment for stock splits, stock combinations, stock dividends and similar events.
7.Notices. All notices and other communications given or made under this Note shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth below, as the case may be, or to such email address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 7:
If to the Company, to:
Mondee Holdings, Inc.
10800 Pecan Park Blvd.
Suite 315
Austin, Texas 78750
Attention: Jesus Portillo [***]
with a copy to (which shall not constitute notice):
ReedSmith LLP
2850 N. Harwood Street | Suite 1500
Dallas, TX 75201
Attn: Lynwood E. Reinhardt, Esq. [***]
If to the Holder, to:
[Applicable Holder]
with a copy to (which shall not constitute notice):
[Applicable Counsel]
8.Amendments and Waivers. This Note may not be modified, amended, waived, extended, changed, discharged, or terminated orally or by any act or failure to act, but only by an instrument in writing signed by the Company and the Holder.
9.Transfer of Note; Successors and Assigns. Prior to the delivery of the Promissory Note Election Notice, the Holder may assign or otherwise transfer from time to time in compliance with applicable securities laws, without the consent of the Company, all or any
portion of this Note with the corresponding proportionate amount of shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock held by such Holder to any Person (other than a Prohibited Transferee), and the Note shall be in an amount equal to the transferee’s post-transfer, pro rata shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock in proportion to the shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock held by all holders thereof. Following delivery of the Promissory Note Election Notice, this Note may be assigned or otherwise transferred by the Holder from time to time in compliance with applicable securities laws without the consent of the Company. In the event the Holder assigns or otherwise transfers all or any part of this Note, the Company shall, upon the request of the Holder issue new Notes to effectuate such assignment or transfer. In the event of any such assignment or transfer pursuant to this Section 9, the obligations of the Company hereunder shall inure to the benefit of all such assigns and successors. The Company may not assign or delegate its obligations hereunder without the prior written consent of the Holder, and any purported assignment without such consent shall be void and of no effect. This Note applies to, inures to the benefit of, and binds the successors of the parties hereto.
10.Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a)Governing Law. This Note shall be governed by the laws of the State of Delaware without giving effect, to the extent permitted by applicable law, to any conflict of law principles that would result in the application of any other law.
(b)Consent to Jurisdiction. The parties (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Delaware or the United States District Court for the District of Delaware, and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
(c)WAIVER OF JURY TRIAL. EACH PARTY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH
PARTY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
11.Waiver, No Impairment.
(a)To the extent that such waiver is not prohibited by any Requirement of Law and cannot be waived, the Company hereby expressly waives: (i) all presentments, demands for performance, notices of nonperformance (except to the extent required by this Note), protests, notices of protest and notices of dishonor; (ii) any requirement of diligence or promptness on the part of the Holder in the enforcement of its rights under this Note; (iii) any and all notices of every kind and description which may be required to be given by any Requirement of Law; and (iv) any defense (other than indefeasible payment in full) which it may now or hereafter have with respect to its liability under this Note or with respect to the Debt.
(b)The Company will not, by any voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will, at all times, in good faith, assist in carrying out of all the provisions of this Note and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder against impairment.
12.No Waiver by Holder. No delay or omission by the Holder in exercising any right under this Note shall operate as a waiver of that or any other right. A waiver or consent given by the Holder on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
13.Expenses. In connection with the occurrence of an Event of Default, the Company shall pay all costs and expenses of every kind incurred in connection with any proceedings to collect any liabilities evidenced by this Note, including reasonable attorneys’ fees.
14.Lost or Stolen Note. Upon receipt by the Company of evidence of the loss, theft, destruction or mutilation of the original Note, and (in the case of loss, theft or destruction) of indemnity or security reasonably satisfactory to the Company, and upon surrender and cancellation of the Note, the Company shall execute and deliver a new Note of like tenor and date.
15.Severability. The invalidity or unenforceability of any provisions of this Note in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Note in such jurisdiction or the validity, legality or enforceability of this Note, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the Company and the Holder hereunder shall be enforceable to the fullest extent permitted by Requirements of Law. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the Company and the Holder will negotiate in good faith to modify this Note so as to effect the original intent of the Company and the Holder as closely as possible
in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
16.Section Headings. The section headings contained in this Note are solely for the purpose of reference, are not part of the agreement of the Company and the Holder and shall not in any way affect the meaning or interpretation of this Note. All references in this Note to Sections are to sections of this Note, unless otherwise indicated.
17.Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has caused this Note to be executed and dated the day and year first written above.
COMPANY
MONDEE HOLDINGS, INC.
By:
Name:
Title:
ACCEPTED AND AGREED:
HOLDER
[Applicable Holder]
SECOND AMENDED AND RESTATED WARRANT AGREEMENT
THIS SECOND AMENDED AND RESTATED WARRANT AGREEMENT (as amended, supplemented, or otherwise modified from time to time, this “Agreement”), dated as of August [●], 2024, is by and between Mondee Holdings, Inc., a Delaware corporation (the “Company”) and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”, also referred to herein as the “Transfer Agent”).
WHEREAS, on October 17, 2023, and December 14, 2023, the Company entered into those Subscription Agreements with the investors named therein (the “Incremental Investors”), pursuant to which the Company issued 1,444,500 whole warrants to certain Incremental Investors (the “First Amendment Warrants”);
WHEREAS, as of the date hereof, the Company entered into that certain Amendment and Restatement (the “Amendment”) of Second Amended and Restated Certificate of Designation (the “Certificate of Designation”) with Incremental Investors, pursuant to which the Incremental Investors agreed to amend the terms of the Series A Preferred Stock (as defined in the Certificate of Designation), and in connection therewith, the Incremental Investors surrendered their First Amendment Warrants to the Company and such First Amendment Warrants have been cancelled (the “Cancelled Warrants”), and the Company on the date hereof delivered 1,444,500 whole warrants to replace the Cancelled Warrants to certain of the Incremental Investors, bearing the restrictive legends set forth in Exhibit A (the “Warrants”); and each whole Warrant entitles the holder thereof to purchase one share of Class A common stock, par value $0.0001 per share, of the Company (the “Common Stock”) for a Strike Price (as defined below) per share, subject to adjustments as described herein; “Strike Price” as used in this Agreement shall mean $0.01 plus the lower of (a) the closing price of the Common Stock on the last day of trading on a national exchange immediately prior to the date hereof and (b) the volume weighted average price of the Common Stock for the five trading days immediately prior to the date hereof;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1.Appointment of the Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointments and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2.Warrants.
2.1Form of Warrant. Each Warrant shall be issued in registered form only, and, if a physical certificate is issued, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the electronic or facsimile signature of, the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, Treasurer or other principal officer of the Company. In the event the person whose electronic or facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant certificate shall be invalid and of no effect and may not be exercised by the holder thereof.
2.3Registration.
2.3.1Warrant Register.
(a)The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. All of the Warrants shall initially be represented by one or more book-entry certificates (each, a “Book-Entry Warrant Certificate”) deposited with The Depository Trust Company (the “Depositary”) and registered in the name of Cede & Co., a nominee of the Depositary. Ownership of beneficial interests in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by (i) the Depositary or its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that have accounts with the Depositary (each such institution, with respect to a Warrant in its account, a “Participant”) or, to the extent the Warrants are not so eligible as such on the date of issuance, will be issued in book-entry form on the records of the Warrant Agent until so made eligible.
(b)If the Depositary subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no longer necessary to have the Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each Book-Entry Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificate”). Such Definitive Warrant Certificate shall be in the form annexed hereto as Exhibit A, with appropriate insertions, modifications and omissions, as provided above.
2.3.2Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on a Definitive Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4No Fractional Warrants. The Company shall not issue fractional Warrants. If a holder of Warrants would be entitled to receive a fractional Warrant, the Company shall round down to the nearest whole number the number of Warrants to be issued to such holder.
3. Terms and Exercise of Warrants.
3.1Warrant Price. Each Warrant, when countersigned by the Warrant Agent, shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the Strike Price per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share at which shares of Common Stock may be purchased at the time a Warrant is exercised. The Company (i) in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below), and (ii) to the extent it lowers the exercise price of the Company’s warrants subject to that certain Amended and Restated Warrant Agreement, dated as of July 18, 2022 (as amended or restated from time to time) (the “DeSPAC Warrants”), the Company shall lower the Warrant Price proportionately and in the same manner, in each case for a period of not less than 20 days on which banks in New York City are generally open for normal business (a “Business Day”), provided, that the Company shall provide at least 20 days’ prior written notice of such reduction to Registered Holders of the Warrants and, provided further that any such reduction shall be identical among all of the Warrants.
3.2Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) commencing on the date hereof, and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) December 30, 2028 (the “Original Issue Date”) or (y) the liquidation of the Company in accordance with the Company’s amended and restated certificate of incorporation, as amended from time to time (the “Amended and Restated Certificate of Incorporation”) (the “Expiration Date”). Each outstanding Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company (i) in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date and (ii) to the extent it extends the expiration date of the DeSPAC Warrants, the Company shall extend the Expiration Date of the Warrants accordingly; provided, in each case, that the Company shall provide at least 20 days’ prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.
3.3Exercise of Warrants.
3.3.1Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an election to purchase (“Election to Purchase”) shares of Common Stock pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or,
in the case of a Book-Entry Warrant Certificate, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) payment in full of the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the shares of Common Stock and the issuance of such shares of Common Stock, as follows:
(a)in lawful money of the United States, in good certified check or good bank draft payable to the order of the Warrant Agent or by wire transfer;
(b)[Reserved]; or
(c)by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the excess of the “Fair Market Value”, as defined in this Section 3.3.1(c), over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the shares of Common Stock for the 10 trading days ending on the third trading day prior to the date on which notice of exercise of the Warrant is sent to the Warrant Agent.
3.3.2Issuance of Shares of Common Stock on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to Section 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of full shares of Common Stock to which such Registered Holder is entitled, registered in such name or names as may be directed by such Registered Holder, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares of Common Stock as to which such Warrant shall not have been exercised. If fewer than all the Warrants evidenced by a Book Entry Warrant Certificate are exercised, a notation shall be made to the records maintained by the Depositary, its nominee for each Book Entry Warrant Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining after such exercise. If, by reason of any exercise of Warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share of Common Stock, the Company shall round down to the nearest whole number, the number of shares of Common Stock to be issued to such holder.
3.3.3Valid Issuance. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement and the Amended and Restated Certificate of Incorporation shall be validly issued, fully paid and non-assessable.
3.3.4Date of Issuance. Upon proper exercise of a Warrant, the Company shall instruct the Warrant Agent, in writing, to make the necessary entries in the register of members of the Company in respect of the shares of Common Stock and to issue a certificate if requested by the holder of such Warrant. Each person in whose name any book-entry position in the register of members of the Company or certificate, as applicable, for shares of Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares of Common Stock on the date on which the Warrant, or book-entry position in the register of members of the Company representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members or share transfer books of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares of
Common Stock at the close of business on the next succeeding date on which the register of members, share transfer books or book-entry system are open.
3.3.5 Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5; however, no holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.9% (or such other amount as a holder may specify) (the “Maximum Percentage”) of the shares of Common Stock issued and outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preference shares or Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of issued and outstanding shares of Common Stock, the holder of a Warrant may rely on the number of issued and outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Securities and Exchange Commission (the “Commission”) as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock issued and outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of issued and outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the 61st day after such notice is delivered to the Company.
4.Adjustments.
4.1Share Capitalizations.
4.1.1Subdivision. If after the Original Issue Date, and subject to the provisions of Section 4.6 below, the number of issued and outstanding shares of Common Stock is increased by a capitalization of shares of Common Stock, or by a subdivision of shares of Common Stock or other similar event, then, on the effective date of such share capitalization, subdivision or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding shares of Common Stock. A rights offering to holders of the shares of Common Stock entitling holders to purchase shares of Common Stock at a price less than
the “Fair Market Value” (as defined below) shall be deemed a capitalization of a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for Common Stock) and (ii) one minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the Fair Market Value. For purposes of this Section 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for the shares of Common Stock, in determining the price payable for shares of Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means the volume weighted average price of the shares of Common Stock as reported during the 10 trading day period ending on the trading day prior to the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
4.1.2Issuances Below Warrant Price. (a) If on or after the Original Issue Date, the Company issues or sells any shares of Common Stock, any debt or equity securities that are directly or indirectly convertible into or exercisable or exchangeable for shares of Common Stock (“Convertible Securities”), or any rights, warrants or options to subscribe for or purchase any of the foregoing (“Options”) (including, in each case, the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock issued by the Company upon exercise of the Warrants or the DeSPAC Warrants or in connection with the exercise, conversion or exchange of any Convertible Securities or Options for which an adjustment was already made pursuant to this Section 4.1.2) for a consideration per share (including upon exercise, exchange or conversion) of less than the Warrant Price then in effect (the “Applicable Price”, and any such issuance a “Dilutive Issuance”), then, immediately after such Dilutive Issuance, the Warrant Price immediately after such Dilutive Issuance shall be equal to the quotient of (A) the sum of (x) the product of (I) the Warrant Price in effect immediately prior to such Dilutive Issuance, multiplied by (II) the aggregate number of shares of Common Stock outstanding immediately prior to such Dilutive Issuance, calculated on a Fully-Diluted Basis, plus (y) the consideration, if any, received by the Company upon such issuance or sale (or, with respect to any Convertible Securities or Options, the exercise price or conversion price, as applicable, of such securities as of the date of such issuance or sale), divided by (B) the aggregate number of shares of Common Stock outstanding immediately after such Dilutive Issuance, calculated on a Fully-Diluted Basis. Upon each such adjustment of the Warrant Price hereunder, the number of shares of Common Stock purchasable upon the exercise of this Warrant shall be equal to the quotient of (A) the Warrant Price in effect immediately prior to such Dilutive Issuance multiplied by the number of shares of Common Stock that the holder of the Warrants would have been entitled to purchase upon exercise of this Warrant (assuming an exercise for cash pursuant to Section 3.3.1(a) and without regard to any restriction or limitation on exercise) immediately prior to such adjustment, divided by (B) the Warrant Price resulting from such adjustment (such additional amount of shares after giving effect to this sentence, the “Additional Warrant Shares”). For purposes hereof, “Fully-Diluted Basis” means, when calculating the aggregate number of shares of Common Stock deemed outstanding as of the time of any applicable determination time, a basis that includes an aggregate number of shares of Common Stock equal to the sum of (without duplication) (x) the aggregate number of shares of Common Stock outstanding as of such determination time, (y) the aggregate number of shares of Common Stock that would be outstanding assuming the conversion, exchange and exercise of all outstanding Convertible Securities and Options as of such determination time and (z) the aggregate number of shares of Common Stock underlying any outstanding Convertible Securities and Options as of such determination time.
(b) Change in Option Price or Rate of Conversion. On or after the Original Issue Date, and without duplication for any adjustment pursuant to Sections 4.1.1 or 4.4 hereof, if the purchase price
provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities or are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time, then the Warrant Price in effect at the time of such increase or decrease shall be adjusted to the Warrant Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold; provided that for the avoidance of doubt, no Additional Warrant Shares will be issued in connection with any such increase or decrease pursuant to the currently existing terms of the DeSPAC Warrants. No adjustment pursuant to this Section 4.1.2(b) shall be made if such adjustment would result in an increase of the Warrant Price then in effect or a decrease in the number of shares of Common Stock then issuable under a Warrant.
4.1.3Distributions, Purchase Rights. (a) In addition to any adjustments pursuant to this Section 4, if, on or after the Original Issue Date and on or prior to the Expiration Date, the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options, evidence of indebtedness or any other asset by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), then, in each such case, each holder of the Warrants shall be entitled to participate in such Distribution to the same extent that such holder would have participated therein if such holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (assuming an exercise for cash pursuant to Section 3.3.1(a) and without regard to any restriction or limitation on exercise) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution. (b) In addition to any adjustments pursuant to this Section 4, if at any time on or after the Original Issue Date, and on or prior to the Expiration Date the Company (i) grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase Rights”), then each holder of Warrants will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such holder could have acquired if such holder had held the number of shares of Common Stock acquirable upon complete exercise of its Warrants (assuming an exercise for cash pursuant to Section 3.3.1(a) and without regard to any restriction or limitation on exercise) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issuance or sale of such Purchase Rights, or (ii) conducts any Pro Rata Repurchase Offer, a holder of the Warrants shall be permitted to (but shall not be obligated to) participate, in whole or in part, on an as-converted basis, provided that, notwithstanding any other provision hereof, such participation may at the election of such holder be conditioned upon the consummation of such transaction, in which case such participation shall not be deemed to be effective until immediately prior to the consummation of such transaction. For purposes hereof, “Pro Rata Repurchase Offer” means any offer to purchase shares of Common Stock by the Company or any affiliate thereof pursuant to (i) any tender offer or exchange offer subject to Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (ii) any other offer available to substantially all holders of Common Stock (subject to satisfaction of any conditions to participation therein such as those relating to minimum holding percentages or accredited status) to purchase or exchange their shares of Common Stock, in the case of both clauses (i) and (ii), whether for cash, shares of capital stock of the Company, other securities of the Company, evidences of indebtedness of the Company or any other person, or any other property (including, without limitation, shares of capital
stock, other securities or evidences of indebtedness of a subsidiary of the Company), or any combination thereof, effected while the Warrants are outstanding. The “effective date” of a Pro Rata Repurchase Offer shall mean the date of acceptance of shares for purchase or exchange by the Company under any tender or exchange offer which is a Pro Rata Repurchase Offer or the date of purchase with respect to any Pro Rata Repurchase Offer that is not a tender or exchange offer.
4.2Aggregation of Shares. If after the Original Issue Date, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse share split, redesignation, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding shares of Common Stock.
4.3Adjustments in Warrant Price. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in Section 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.
4.4Replacement of Securities upon Reorganization, etc. In case of any redesignation or reorganization of the issued and outstanding shares of Common Stock (other than a change under Sections 4.1.1 or Section 4.2 hereof or that solely affects the par value of such shares of Common Stock), or in the case of any merger or consolidation of the Company with or into another entity or conversion of the Company as another entity (other than a consolidation or merger in which the Company is the continuing corporation and is not a subsidiary of another entity whose shareholders did not own all or substantially all of the shares of Common Stock of the Company in substantially the same proportions immediately before such transaction and that does not result in any redesignation or reorganization of the issued and outstanding shares of Common Stock), or in the case of any sale or conveyance to another entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is liquidated or dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or other securities or property (including cash) receivable upon such redesignation, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”); provided, however, that in connection with the closing of any such consolidation, merger, sale or conveyance, the successor or purchasing entity shall execute an amendment hereto with the Warrant Agent providing for delivery of such Alternative Issuance; provided, further, that (i) if the holders of the shares of Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the shares of Common Stock in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the shares of Common Stock under circumstances in which, upon completion of such tender or exchange offer, the maker thereof,
together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor rule)) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act (or any successor rule)) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act (or any successor rule)) more than 50% of the issued and outstanding shares of Common Stock, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the shares of Common Stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided, further, that if less than 70% of the consideration receivable by the holders of the shares of Common Stock in the applicable event is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within 30 days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (but in no event less than zero) (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) minus (B) the Black-Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (“Bloomberg”). For purposes of calculating such amount, (1) the price of each share of Common Stock shall be the volume weighted average price of the shares of Common Stock as reported during the 10 trading-day period ending on the trading day prior to the effective date of the applicable event, (2) the assumed volatility shall be the 90-day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event, and (3) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the shares of Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (ii) in all other cases, the amount of cash per share of Common Stock, if any, plus the volume weighted average price of the shares of Common Stock as reported during the 10 trading-day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in shares of Common Stock covered by any other provision of this Section 4, then such adjustment shall be made pursuant to such other applicable provision of this Section 4 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassification, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant. Notwithstanding anything in this Agreement to the contrary, in connection with any of the foregoing events described in this Section 4.4, a holder of Warrants electing to exercise its Warrants may, at the election of such holder, condition such exercise upon the consummation of such event.
4.5Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares of Common Stock issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares of Common Stock purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections
4.1, Sections 4.2, Section 4.3 or Section 4.4, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.6No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares of Common Stock upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number, the number of shares of Common Stock to be issued to such holder.
4.7Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares of Common Stock as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.8Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5.Transfer and Exchange of Warrants.
5.1Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, in the case of certificated Warrants, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or in any Book Entry Warrant Certificate or Definitive Warrant Certificate, each Book Entry Warrant Certificate and Definitive Warrant Certificate may be transferred only in whole and only to the Depositary, to another nominee of the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and
issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend. The Company agrees to cooperate with holders of the Warrants from time to time to cause its counsel to provide any such opinions of counsel reasonably requested in connection with any such transfers. In addition, the Company agrees to cause the Warrant Agent or the Transfer Agent for the Common Stock, as applicable, to remove the restrictive legends on the Warrants and/or the shares of Common Stock issuable upon exercise thereof, as applicable, when such securities are sold pursuant to Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) or an effective registration statement or may be sold without restriction under Rule 144 under the Securities Act. In connection therewith, if required by the Warrant Agent or the Company’s Transfer Agent, the Company will promptly cause an opinion of counsel to be delivered to and maintained with the Warrant Agent or such Transfer Agent, together with any other authorizations, certificates and directions required by the Warrant Agent or such Transfer Agent that authorize and direct the Warrant Agent or such Transfer Agent, as applicable, to transfer such securities without any such legends.
5.3Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange that shall result in the issuance of a Warrant certificate or book-entry position for a fraction of a Warrant.
5.4Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6Instrument of Transfer. The instrument of transfer of any Warrant may be executed for and on behalf of the transferor by any party designated by, or pursuant to resolutions of, the Board of the Company for such purpose, and the Company or any other party designated by, or pursuant to resolutions of, the Board of the Company for such purpose shall be deemed to have been irrevocably appointed agent for the transferor of such Warrant or Warrants with full power to execute, complete and deliver in the name of and on behalf of the transferor of such Warrant or Warrants all such transfers of Warrants held by the Warrant holders.
5.7Transfers Generally. Notwithstanding anything in this Agreement to the contrary, (i) except as may be required by applicable law, the Warrants and the shares of Common Stock issuable upon exercise thereof shall not be subject to any restrictions on transfers, and (ii) each holder of Warrants shall be permitted to transfer the Warrants (and the shares of Common Stock issuable upon exercise thereof) to any of its affiliates in compliance with applicable law.
6.No Redemption. The Warrants shall not be redeemable at the option of the Company.
7.Other Provisions Relating to Rights of Holders of Warrants.
7.1No Rights as Shareholder. Except as otherwise set forth herein, a Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or
to consent or to receive notice as shareholders in respect of general meetings or the appointment of directors of the Company or any other matter.
7.2Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3Reservation of Shares of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants subject to the terms and conditions of this Agreement.
7.4Registration of Shares of Common Stock.
7.4.1Registration Rights. Holders of the Warrants and the shares of Common Stock issuable upon the exercise thereof (together with their applicable assignees and transferees) shall be entitled to the benefits of that certain third amended and restated registration rights agreement, dated the date hereof, between the Company and the holders or the Warrants.
8.Concerning the Warrant Agent and Other Matters.
8.1Payment of Taxes. The Company shall from time to time promptly pay all taxes (including any interest and penalties) and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such Common Stock other than in respect of the issuance or delivery of shares of Common Stock upon the exercise of the Warrants by the initial holder hereof.
8.2Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving 60 days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any
reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Common Stock not later than the effective date of any such appointment.
8.2.3Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3Fees and Expenses of Warrant Agent.
8.3.1Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4Liability of Warrant Agent.
8.4.1Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer, Chief Financial Officer, Treasurer, or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.
8.4.3Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for
the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Common Stock shall, when issued, be valid and fully paid and non-assessable.
8.5Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Common Stock through the exercise of the Warrants.
9.Company Covenants.
9.1During the period the Warrants are outstanding, the Company will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the shares of Common Stock upon the exercise of any Purchase Rights represented by the Warrants. The Company further covenants that its issuance of the Warrants shall constitute full authority to its officers who are charged with the duty of executing stock certificates and issuing shares of Common Stock to execute and issue the necessary shares of Common Stock upon the exercise of the Purchase Rights under the Warrants. The Company shall take all such action as may be reasonably necessary or appropriate to assure that such shares of Common Stock issuable upon exercise of the Warrants may be issued as provided herein and in the Warrants without violation of any applicable law or regulation, any requirements of the principal securities exchange upon which the shares of Common Stock may be listed at the time of such exercise or any preemptive or similar rights of any equity holder of the Company.
9.2For the avoidance of doubt, the Company will not, by amendment of its governing documents or through any consolidation, merger, reorganization, distribution or dividend, transfer of assets, dissolution, issue, sale or exchange of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement or the Warrants.
9.3Before taking any action which would result in an adjustment in the number of shares of Common Stock for which the Warrants are exercisable or in the Warrant Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock at the Warrant Price as so adjusted.
10.Miscellaneous Provisions.
10.1Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
10.2Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
Mondee Holdings, Inc.
10800 Pecan Park Blvd.
Suite 315
Austin, Texas 78750
Attention: Jesus Portillo
Email: jportillo@mondee.com
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attention: Compliance Department
in each case, with a copy to:
Reed Smith LLP
599 Lexington Avenue, 22nd Floor
New York, NY 10022
Attention: Lynwood Reinhardt and Panos Katsambas
10.3Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
10.4[Reserved]
10.5Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants, any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
10.6Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.
10.7Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
10.8Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
10.9Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder (i) for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders, and (ii) to provide for the delivery of Alternative Issuance pursuant to Section 4.4. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the vote or written consent of the Registered Holders of a majority of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and Section 3.2, respectively, without the consent of the Registered Holders.
10.10Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
10.11Limitation of Liability. No provision hereof, in the absence of any affirmative action by the holder of a Warrant to exercise such Warrant to purchase shares of Common Stock, and no enumeration herein of the rights or privileges of the holders of the Warrants, shall give rise to any liability of any such holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
10.12Remedies. The holders of the Warrants, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of the rights under this Agreement and the Warrants. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and the Warrants and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
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| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent |
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[Signature Page to the Warrant Agreement]
EXHIBIT A
[Form of Warrant Certificate]
[FACE]
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSON EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER (“RULE 144A”) OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS FOR THE BENEFIT OF THE COMPANY THAT: (A) IT IS (I) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) (A “QIB”) AND (II) ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB; OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT,
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT (AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS SECURITY), ONLY: (A)(I) FOR SO LONG AS THE SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QIB THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT (PROVIDED THAT PRIOR TO SUCH TRANSFER, THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT), (III) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRANSFER AGENT) AND, IF REQUESTED BY THE TRANSFER AGENT, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (IV) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (PROVIDED THAT PRIOR TO SUCH TRANSFER, THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL AND OTHER CERTIFICATIONS OR DOCUMENTS EVIDENCING THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT); (B) TO THE COMPANY OR ANY SUBSIDIARY THEREOF; OR (C) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE DESCRIBED IN THIS CLAUSE (2), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (2) ABOVE.
NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
THE FOREGOING RESTRICTIVE LEGEND MAY BE REMOVED BY THE COMPANY OR AT THE REQUEST OF A HOLDER OF THE SECURITY IF SUCH SECURITY NO LONGER CONSTITUTES A “RESTRICTED SECURITY” WITHIN THE MEANING OF RULE 144 OR IN CONNECTION WITH A TRANSFER FOLLOWING WHICH SUCH SECURITY WOULD NO LONGER CONSTITUTE A “RESTRICTED SECURITY”.
Number
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
MONDEE HOLDINGS, INC.
Incorporated Under the Laws of Delaware
CUSIP [●]
Warrant Certificate
This warrant certificate (this “Warrant Certificate”) certifies that [●], or registered assigns, is the registered holder of warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase one share of Class A common stock, of $0.0001 par value per share (“Common Stock”), of Mondee Holdings, Inc., a Delaware corporation (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable shares of Common Stock as set forth below, at the exercise price (the “Warrant Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Each whole Warrant is initially exercisable for one fully paid and non-assessable share of Common Stock. No fractional shares will be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in a share of Common Stock, the Company will, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the Warrant holder. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Warrant Price per share of Common Stock for any Warrant is equal to the Strike Price per share. The Warrant Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.
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| MONDEE HOLDINGS, INC.,
as the Company |
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
as Warrant Agent |
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[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to the Second Amended and Restated Warrant Agreement dated as of August [●], 2024 (the “Warrant Agreement”), duly executed and delivered by the Company, Mondee Holdings, Inc., a Delaware corporation, to Continental Stock Transfer & Trust Company, a New York corporation, as Warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Warrant Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company, except as otherwise specified in the Warrant Agreement.
Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby [irrevocably elects to]/[elects to conditionally] exercise the right, represented by this Warrant Certificate[, subject to the consummation of [________]], to receive shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of Mondee Holdings, Inc., a Delaware corporation (the “Company”), in the amount of $[●] in accordance with the terms hereof. The undersigned requests that a certificate for such shares of Common Stock be registered in the name of [●], whose address is [●], and that such shares of Common Stock be delivered to [●], whose address is [●]. If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of [●], whose address is [●], and that such Warrant Certificate be delivered to [●], whose address is [●].
In the event that the Warrant is to be exercised through cashless exercise (i) the number of shares of Common Stock that this Warrant is exercisable for would be determined in accordance with the section 3.3.1(c) of the Warrant Agreement and (ii) the holder hereof shall complete the following: The undersigned hereby [irrevocably/conditionally, subject to the consummation of [ ],] elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of [●], whose address is [●], and that such Warrant Certificate be delivered to [●], whose address is [●].
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
NEW WARRANT AGREEMENT
NEW WARRANT AGREEMENT (as amended, supplemented, or otherwise modified from time to time, this “Agreement”), dated as of August [●], 2024, is by and between Mondee Holdings, Inc., a Delaware corporation (the “Company”) and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”, also referred to herein as the “Transfer Agent”).
WHEREAS, as of the date hereof, the Company entered into that certain Amendment and Restatement (the “Amendment”) of Second Amended and Restated Certificate of Designation (the “Certificate of Designation”) with investors named therein (the “Investors”), pursuant to which the Investors agreed to amend the terms of the Series A Preferred Stock (as defined in the Certificate of Designation), and in connection therewith, the Company shall deliver up to the greater of (a) ten percent (10%) of the total amount of outstanding shares of Common Stock (as defined below) of the Company as of the date hereof or (b) 9,464,967 whole warrants to certain of the Investors, bearing the restrictive legends set forth in Exhibit A (the “Warrants”) with each Investor receiving the number and type of Warrants, including the Strike Price thereof, set forth opposite such Investor’s name on Schedule I on the date hereof, on September 30, 2026, if any Series A Preferred Stock (as defined in the Certificate of Designation) remains outstanding on such date, and on September 30, 2027, if any shares of Series A Preferred Stock remains outstanding on such date; and each whole Warrant entitles the holder thereof to purchase one share of Class A common stock, par value $0.0001 per share, of the Company (the “Common Stock”) for the applicable Strike Price (as defined below) per share; “Strike Price” as used in this Agreement shall mean for Warrants issued (a) on the date hereof (i) [●]1 Warrants for $0.01 per share (the “Initial Penny Warrants”) 2 and (ii) [●]3 for a price per share equal to the lower of $1.00 and the volume weighted average price per share of Common Stock for the five trading days prior to [●], 2024 (the “Initial Non-Penny Warrants”),4,5 (b) on September 30, 2026 (if any), (i) [●]6 for $0.01 per share (the “2026 Penny Warrants”) 7 and (ii) [●]8 for a price per share equal to the lower of $1.00 and the volume weighted average price per share of Common Stock for the five trading days prior to September 30, 2026 (the “2026 Non-Penny Warrants”) 9, and (c) on September 30, 2027 (if any), (i) [●]10 for $0.01 per share (the “2027 Penny Warrants”) 11 and (ii) [●]12 for a price per share equal to the l
1 Note to Draft: To greater of (a) reflect 3% of the total amount of outstanding shares of Common Stock as of immediately prior to the closing and (b) 2,839,490 whole warrants.
2 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
3 Note to Draft: To greater of (a) reflect 2% of the total amount of outstanding shares of Common Stock as of immediately prior to the closing and (b) 1,892,993 whole warrants.
4 Note to Draft: To be the Closing Date.
5 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
6 Note to Draft: To reflect greater of (a) 1.875% of the total amount of outstanding shares of Common Stock as of immediately prior to the closing and (b) 1,774,681 whole warrants.
7 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
8 Note to Draft: To reflect greater of (a) 0.625% of the total amount of outstanding shares of Common Stock as of immediately prior to the closing and (b) 591,560 whole warrants.
9 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
10 Note to Draft: To reflect greater of (a) 1.875% of the total amount of outstanding shares of Common Stock as of immediately prior to the closing and (b) 1,774,681 whole warrants.
11 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
12 Note to Draft: To reflect greater of (a) 0.625% of the total amount of outstanding shares of Common Stock as of immediately prior to the closing and (b) 591,560 whole warrants.
ower of $1.00 and the volume weighted average price per share of Common Stock for the five trading days prior to September 30, 2027 (the “2027 Non-Penny Warrants”) 13;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1.Appointment of the Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointments and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2.Warrants.
2.1Form of Warrant. Each Warrant shall be issued in registered form only, and, if a physical certificate is issued, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the electronic or facsimile signature of, the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, Treasurer or other principal officer of the Company. In the event the person whose electronic or facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant certificate shall be invalid and of no effect and may not be exercised by the holder thereof.
2.3Registration.
2.3.1Warrant Register.
13 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
(a)The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. All of the Warrants shall initially be represented by one or more book-entry certificates (each, a “Book-Entry Warrant Certificate”) deposited with The Depository Trust Company (the “Depositary”) and registered in the name of Cede & Co., a nominee of the Depositary. Ownership of beneficial interests in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by (i) the Depositary or its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that have accounts with the Depositary (each such institution, with respect to a Warrant in its account, a “Participant”) or, to the extent the Warrants are not so eligible as such on the date of issuance, will be issued in book-entry form on the records of the Warrant Agent until so made eligible.
(b)If the Depositary subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no longer necessary to have the Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each Book-Entry Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificate”). Such Definitive Warrant Certificate shall be in the form annexed hereto as Exhibit A, with appropriate insertions, modifications and omissions, as provided above.
2.3.2Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on a Definitive Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4No Fractional Warrants. The Company shall not issue fractional Warrants. If a holder of Warrants would be entitled to receive a fractional Warrant, the Company shall round down to the nearest whole number the number of Warrants to be issued to such holder.
3. Terms and Exercise of Warrants.
3.1Warrant Price. Each Warrant, when countersigned by the Warrant Agent, shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the applicable Strike Price per share, subject to the adjustments provided in Section 4 hereof and the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share at which shares of Common Stock may be purchased at the time a Warrant is exercised. The Company (i) in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below), and (ii) to the extent it lowers the exercise price of the Company’s warrants subject to that certain Amended and Restated Warrant Agreement, dated as of July 18, 2022 (as amended or restated from time to time) (the “DeSPAC Warrants”), the Company shall lower the Warrant Price proportionately and in the same manner, in each case for a period of not less than 20 days on which banks in New York City are generally
open for normal business (a “Business Day”), provided, that the Company shall provide at least 20 days’ prior written notice of such reduction to Registered Holders of the Warrants and, provided further that any such reduction shall be identical among all of the Warrants.
3.2Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) commencing on the date hereof, and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) [●], or (y) the liquidation of the Company in accordance with the Company’s amended and restated certificate of incorporation, as amended from time to time (the “Amended and Restated Certificate of Incorporation”) (the “Expiration Date”). Each outstanding Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company (i) in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date and (ii) to the extent it extends the expiration date of the DeSPAC Warrants, the Company shall extend the Expiration Date of the Warrants accordingly; provided, in each case, that the Company shall provide at least 20 days’ prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.
3.3Exercise of Warrants.
3.3.1Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an election to purchase (“Election to Purchase”) shares of Common Stock pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or, in the case of a Book-Entry Warrant Certificate, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) payment in full of the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the shares of Common Stock and the issuance of such shares of Common Stock, as follows:
(a)in lawful money of the United States, in good certified check or good bank draft payable to the order of the Warrant Agent or by wire transfer;
(b)[Reserved]; or
(c)by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the excess of the “Fair Market Value”, as defined in this Section 3.3.1(c), over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the shares of Common Stock for the 10 trading days ending on the third trading day prior to the date on which notice of exercise of the Warrant is sent to the Warrant Agent.
3.3.2Issuance of Shares of Common Stock on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to Section 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-
entry position or certificate, as applicable, for the number of full shares of Common Stock to which such Registered Holder is entitled, registered in such name or names as may be directed by such Registered Holder, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares of Common Stock as to which such Warrant shall not have been exercised. If fewer than all the Warrants evidenced by a Book-Entry Warrant Certificate. are exercised, a notation shall be made to the records maintained by the Depositary, its nominee for each Book-Entry Warrant Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining after such exercise. If, by reason of any exercise of Warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share of Common Stock, the Company shall round down to the nearest whole number, the number of shares of Common Stock to be issued to such holder.
3.3.3Valid Issuance. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement and the Amended and Restated Certificate of Incorporation shall be validly issued, fully paid and non-assessable.
3.3.4Date of Issuance. Upon proper exercise of a Warrant, the Company shall instruct the Warrant Agent, in writing, to make the necessary entries in the register of members of the Company in respect of the shares of Common Stock and to issue a certificate if requested by the holder of such Warrant. Each person in whose name any book-entry position in the register of members of the Company or certificate, as applicable, for shares of Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares of Common Stock on the date on which the Warrant, or book-entry position in the register of members of the Company representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members or share transfer books of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares of Common Stock at the close of business on the next succeeding date on which the register of members, share transfer books or book-entry system are open.
3.3.5 Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5; however, no holder of a Warrant shall be subject to this Section 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.9% (or such other amount as a holder may specify) (the “Maximum Percentage”) of the shares of Common Stock issued and outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preference shares or Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in
determining the number of issued and outstanding shares of Common Stock, the holder of a Warrant may rely on the number of issued and outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Securities and Exchange Commission (the “Commission”) as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock issued and outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of issued and outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the 61st day after such notice is delivered to the Company.
4.Adjustments.
4.1Share Capitalizations.
4.1.1Subdivision. If after September 29, 2022 (the “Original Issue Date”), and subject to the provisions of Section 4.6 below, the number of issued and outstanding shares of Common Stock is increased by a capitalization of shares of Common Stock, or by a subdivision of shares of Common Stock or other similar event, then, on the effective date of such share capitalization, subdivision or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding shares of Common Stock. A rights offering to holders of the shares of Common Stock entitling holders to purchase shares of Common Stock at a price less than the “Fair Market Value” (as defined below) shall be deemed a capitalization of a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for Common Stock) and (ii) one minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the Fair Market Value. For purposes of this Section 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for the shares of Common Stock, in determining the price payable for shares of Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means the volume weighted average price of the shares of Common Stock as reported during the 10 trading day period ending on the trading day prior to the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
4.1.2Issuances Below Warrant Price.
(a)If on or after the Original Issue Date, the Company issues or sells any shares of Common Stock, any debt or equity securities that are directly or indirectly convertible into or exercisable or exchangeable for shares of Common Stock (“Convertible Securities”), or any rights, warrants or options to subscribe for or purchase any of the foregoing (“Options”) (including, in each case, the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock issued by the Company upon exercise of the Warrants or the DeSPAC Warrants or in connection with the exercise, conversion or exchange of any Convertible
Securities or Options for which an adjustment was already made pursuant to this Section 4.1.2) for a consideration per share (including upon exercise, exchange or conversion) of less than the Warrant Price then in effect (the “Applicable Price”, and any such issuance a “Dilutive Issuance”), then, immediately after such Dilutive Issuance, the Warrant Price immediately after such Dilutive Issuance shall be equal to the quotient of (A) the sum of (x) the product of (I) the Warrant Price in effect immediately prior to such Dilutive Issuance, multiplied by (II) the aggregate number of shares of Common Stock outstanding immediately prior to such Dilutive Issuance, calculated on a Fully-Diluted Basis, plus (y) the consideration, if any, received by the Company upon such issuance or sale (or, with respect to any Convertible Securities or Options, the exercise price or conversion price, as applicable, of such securities as of the date of such issuance or sale), divided by (B) the aggregate number of shares of Common Stock outstanding immediately after such Dilutive Issuance, calculated on a Fully-Diluted Basis. Upon each such adjustment of the Warrant Price hereunder, the number of shares of Common Stock purchasable upon the exercise of this Warrant shall be equal to the quotient of (A) the Warrant Price in effect immediately prior to such Dilutive Issuance multiplied by the number of shares of Common Stock that the holder of the Warrants would have been entitled to purchase upon exercise of this Warrant (assuming an exercise for cash pursuant to Section 3.3.1(a) and without regard to any restriction or limitation on exercise) immediately prior to such adjustment, divided by (B) the Warrant Price resulting from such adjustment (such additional amount of shares after giving effect to this sentence, the “Additional Warrant Shares”). For purposes hereof, “Fully-Diluted Basis” means, when calculating the aggregate number of shares of Common Stock deemed outstanding as of the time of any applicable determination time, a basis that includes an aggregate number of shares of Common Stock equal to the sum of (without duplication) (x) the aggregate number of shares of Common Stock outstanding as of such determination time, (y) the aggregate number of shares of Common Stock that would be outstanding assuming the conversion, exchange and exercise of all outstanding Convertible Securities and Options as of such determination time and (z) the aggregate number of shares of Common Stock underlying any outstanding Convertible Securities and Options as of such determination time.
(b)Change in Option Price or Rate of Conversion. On or after the Original Issue Date, and without duplication for any adjustment pursuant to Sections 4.1.1 or 4.4 hereof, if the purchase price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities or are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time, then the Warrant Price in effect at the time of such increase or decrease shall be adjusted to the Warrant Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold; provided that for the avoidance of doubt, no Additional Warrant Shares will be issued in connection with any such increase or decrease pursuant to the currently existing terms of the DeSPAC Warrants. No adjustment pursuant to this Section 4.1.2(b) shall be made if such adjustment would result in an increase of the Warrant Price then in effect or a decrease in the number of shares of Common Stock then issuable under a Warrant.
4.1.3Distributions, Purchase Rights.
(a) In addition to any adjustments pursuant to this Section 4, if, on or after the Original Issue Date, and on or prior to the Expiration Date, the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options, evidence of indebtedness or any other asset by way of a
dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), then, in each such case, each holder of the Warrants shall be entitled to participate in such Distribution to the same extent that such holder would have participated therein if such holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (assuming an exercise for cash pursuant to Section 3.3.1(a) and without regard to any restriction or limitation on exercise) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution.
(b)In addition to any adjustments pursuant to this Section 4, if at any time on or after the Original Issue Date, and on or prior to the Expiration Date the Company (i) grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase Rights”), then each holder of Warrants will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such holder could have acquired if such holder had held the number of shares of Common Stock acquirable upon complete exercise of its Warrants (assuming an exercise for cash pursuant to Section 3.3.1(a) and without regard to any restriction or limitation on exercise) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issuance or sale of such Purchase Rights, or (ii) conducts any Pro Rata Repurchase Offer, a holder of the Warrants shall be permitted to (but shall not be obligated to) participate, in whole or in part, on an as-converted basis, provided that, notwithstanding any other provision hereof, such participation may at the election of such holder be conditioned upon the consummation of such transaction, in which case such participation shall not be deemed to be effective until immediately prior to the consummation of such transaction. For purposes hereof, “Pro Rata Repurchase Offer” means any offer to purchase shares of Common Stock by the Company or any affiliate thereof pursuant to (i) any tender offer or exchange offer subject to Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (ii) any other offer available to substantially all holders of Common Stock (subject to satisfaction of any conditions to participation therein such as those relating to minimum holding percentages or accredited status) to purchase or exchange their shares of Common Stock, in the case of both clauses (i) and (ii), whether for cash, shares of capital stock of the Company, other securities of the Company, evidences of indebtedness of the Company or any other person, or any other property (including, without limitation, shares of capital stock, other securities or evidences of indebtedness of a subsidiary of the Company), or any combination thereof, effected while the Warrants are outstanding. The “effective date” of a Pro Rata Repurchase Offer shall mean the date of acceptance of shares for purchase or exchange by the Company under any tender or exchange offer which is a Pro Rata Repurchase Offer or the date of purchase with respect to any Pro Rata Repurchase Offer that is not a tender or exchange offer.
4.2Aggregation of Shares. If after the Original Issue Date, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse share split, redesignation, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding shares of Common Stock.
4.3Adjustments in Warrant Price. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in Section 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.
4.4Replacement of Securities upon Reorganization, etc. In case of any redesignation or reorganization of the issued and outstanding shares of Common Stock (other than a change under Sections 4.1.1 or Section 4.2 hereof or that solely affects the par value of such shares of Common Stock), or in the case of any merger or consolidation of the Company with or into another entity or conversion of the Company as another entity (other than a consolidation or merger in which the Company is the continuing corporation and is not a subsidiary of another entity whose shareholders did not own all or substantially all of the shares of Common Stock of the Company in substantially the same proportions immediately before such transaction and that does not result in any redesignation or reorganization of the issued and outstanding shares of Common Stock), or in the case of any sale or conveyance to another entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is liquidated or dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or other securities or property (including cash) receivable upon such redesignation, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”); provided, however, that in connection with the closing of any such consolidation, merger, sale or conveyance, the successor or purchasing entity shall execute an amendment hereto with the Warrant Agent providing for delivery of such Alternative Issuance; provided, further, that (i) if the holders of the shares of Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the shares of Common Stock in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the shares of Common Stock under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor rule)) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act (or any successor rule)) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act (or any successor rule)) more than 50% of the issued and outstanding shares of Common Stock, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the shares of Common Stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided, further, that if less than 70% of the consideration receivable by the holders of the shares of Common Stock in the applicable event is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within 30 days following the public disclosure of the consummation of such applicable event by the Company pursuant to a current report on
Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (but in no event less than zero) (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) minus (B) the Black-Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (“Bloomberg”). For purposes of calculating such amount, (1) the price of each share of Common Stock shall be the volume weighted average price of the shares of Common Stock as reported during the 10 trading-day period ending on the trading day prior to the effective date of the applicable event, (2) the assumed volatility shall be the 90-day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event, and (3) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the shares of Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (ii) in all other cases, the amount of cash per share of Common Stock, if any, plus the volume weighted average price of the shares of Common Stock as reported during the 10 trading-day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in shares of Common Stock covered by any other provision of this Section 4, then such adjustment shall be made pursuant to such other applicable provision of this Section 4 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassification, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant. Notwithstanding anything in this Agreement to the contrary, in connection with any of the foregoing events described in this Section 4.4, a holder of Warrants electing to exercise its Warrants may, at the election of such holder, condition such exercise upon the consummation of such event.
4.5Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares of Common Stock issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares of Common Stock purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, Sections 4.2, Section 4.3 or Section 4.4 the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.6No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares of Common Stock upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number, the number of shares of Common Stock to be issued to such holder.
4.7Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares of Common Stock as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the
substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.8Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5.Transfer and Exchange of Warrants.
5.1Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, in the case of certificated Warrants, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or in any Book-Entry Warrant Certificate or Definitive Warrant Certificate, each Book-Entry Warrant Certificate and Definitive Warrant Certificate may be transferred only in whole and only to the Depositary, to another nominee of the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend. The Company agrees to cooperate with holders of the Warrants from time to time to cause its counsel to provide any such opinions of counsel reasonably requested in connection with any such transfers. In addition, the Company agrees to cause the Warrant Agent or the Transfer Agent for the Common Stock, as applicable, to remove the restrictive legends on the Warrants and/or the shares of Common Stock issuable upon exercise thereof, as applicable, when such securities are sold pursuant to Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) or an effective registration statement or may be sold without restriction under Rule 144 under the Securities Act. In connection therewith, if required by the Warrant Agent or the Company’s Transfer Agent, the Company will promptly cause an opinion of counsel to be delivered to and maintained with the Warrant Agent or such transfer agent, together with any other authorizations, certificates and directions required by the Warrant Agent or such Transfer Agent that authorize and direct the Warrant Agent or such Transfer Agent, as applicable, to transfer such securities without any such legends.
5.3Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange that shall result in the issuance of a Warrant certificate or book-entry position for a fraction of a Warrant.
5.4Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6Instrument of Transfer. The instrument of transfer of any Warrant may be executed for and on behalf of the transferor by any party designated by, or pursuant to resolutions of, the Board of the Company for such purpose, and the Company or any other party designated by, or pursuant to resolutions of, the Board of the Company for such purpose shall be deemed to have been irrevocably appointed agent for the transferor of such Warrant or Warrants with full power to execute, complete and deliver in the name of and on behalf of the transferor of such Warrant or Warrants all such transfers of Warrants held by the Warrant holders.
5.7Transfers Generally. Notwithstanding anything in this Agreement to the contrary, (i) except as may be required by applicable law, the Warrants and the shares of Common Stock issuable upon exercise thereof shall not be subject to any restrictions on transfers, and (ii) each holder of Warrants shall be permitted to transfer the Warrants (and the shares of Common Stock issuable upon exercise thereof) to any of its affiliates in compliance with applicable law; provided, however, that prior to any such transfer to an affiliate, (i) the holder shall provide 5 Business Days’ written notice to the Company and (ii) the transferee shall agree in writing to be bound by the same terms governing the Warrants and any agreements related thereto as the transferring holder; provided, further, that prior to May [●], 2025, the Warrants and any shares of Common Stock acquirable upon the exercise of any Warrant may not be assigned, transferred, sold, exercised or otherwise disposed of by any holder or any other person, other than to an affiliate of the holder or the Company.
6.No Redemption. The Warrants shall not be redeemable at the option of the Company.
7.Other Provisions Relating to Rights of Holders of Warrants.
7.1No Rights as Shareholder. Except as otherwise set forth herein, a Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of general meetings or the appointment of directors of the Company or any other matter.
7.2Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3Reservation of Shares of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants subject to the terms and conditions of this Agreement.
7.4Registration of Shares of Common Stock.
7.4.1Registration Rights. Holders of the Warrants and the shares of Common Stock issuable upon the exercise thereof (together with their applicable assignees and transferees) shall be entitled to the benefits of that certain third amended and restated registration rights agreement, dated the date hereof, between the Company and the holders or the Warrants.
8.Concerning the Warrant Agent and Other Matters.
8.1Payment of Taxes. The Company shall from time to time promptly pay all taxes (including any interest and penalties) and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such Common Stock other than in respect of the issuance or delivery of shares of Common Stock upon the exercise of the Warrants by the initial holder hereof.
8.2Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving 60 days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Common Stock not later than the effective date of any such appointment.
8.2.3Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3Fees and Expenses of Warrant Agent.
8.3.1Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4Liability of Warrant Agent.
8.4.1Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer, Chief Financial Officer, Treasurer, or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.
8.4.3Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Common Stock shall, when issued, be valid and fully paid and non-assessable.
8.5Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Common Stock through the exercise of the Warrants.
8.6Tax Treatment of the Warrants. For U.S. federal income tax purposes (and applicable state and local tax purposes), (a) (i) the issuance of the Initial Penny Warrants with respect to any initial holder thereof shall be treated as the issuance to such holder of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants, and (ii) from and after the issuance of the Initial Penny Warrants, any holder of such Warrants shall be treated as the owner of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants; (b) (i) the issuance of the 2026 Penny Warrants with respect to any initial holder thereof shall be treated as the issuance to such holder of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants, and (ii) from and after the issuance of the 2026 Penny Warrants, any holder of such Warrants shall be treated as the owner of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants; (c) (i) the issuance of the 2027 Penny Warrants with respect to any initial holder thereof shall be treated as the issuance to such holder of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants, and (ii) from and after the issuance of the 2027 Penny Warrants, any holder of such Warrants shall be treated as the owner of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants; (d) if, as of the date of issuance of the Initial Non-Penny Warrants, such Warrants are considered to be in the money by more than a non-de minimis amount, then (i) the issuance of the Initial Non-Penny Warrants with respect to any initial holder thereof shall be treated as the issuance to such holder of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants, and (ii) from and after the issuance of the Initial Non-Penny Warrants, any holder of such Warrants shall be treated as the owner of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants; (e) if, as of the date of issuance of the 2026 Non-Penny Warrants, such Warrants are considered to be in the money by more than a non-de minimis amount, then (i) the issuance of the 2026 Non-Penny Warrants with respect to any initial holder thereof shall be treated as the issuance to such holder of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants, and (ii) from and after the issuance of the 2026 Non-Penny Warrants, any holder of such Warrants shall be treated as the owner of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants; and (f) if, as of the date of issuance of the 2027 Non-Penny Warrants, such Warrants are considered to be in the money by more than a non-de minimis amount, then (i) the issuance of the 2027 Non-Penny Warrants with respect to any initial holder thereof shall be treated as the issuance to such holder of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants, and (ii) from and after the issuance of the 2027 Non-Penny Warrants, any holder of such Warrants shall be treated as the owner of that number of the underlying shares of Common Stock that would be issuable if such Warrants were exercised immediately following the issuance of such Warrants.
9.Company Covenants.
9.1During the period the Warrants are outstanding, the Company will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the shares of Common Stock upon the exercise of any Purchase Rights represented by the Warrants. The Company further covenants that its issuance of the Warrants shall constitute full authority to its officers
who are charged with the duty of executing stock certificates and issuing shares of Common Stock to execute and issue the necessary shares of Common Stock upon the exercise of the Purchase Rights under the Warrants. The Company shall take all such action as may be reasonably necessary or appropriate to assure that such shares of Common Stock issuable upon exercise of the Warrants may be issued as provided herein and in the Warrants without violation of any applicable law or regulation, any requirements of the principal securities exchange upon which the shares of Common Stock may be listed at the time of such exercise or any preemptive or similar rights of any equity holder of the Company.
9.2For the avoidance of doubt, the Company will not, by amendment of its governing documents or through any consolidation, merger, reorganization, distribution or dividend, transfer of assets, dissolution, issue, sale or exchange of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement or the Warrants.
9.3Before taking any action which would result in an adjustment in the number of shares of Common Stock for which the Warrants are exercisable or in the Warrant Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock at the Warrant Price as so adjusted.
10.Miscellaneous Provisions.
10.1Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
10.2Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
Mondee Holdings, Inc.
10800 Pecan Park Blvd.
Suite 315
Austin, Texas 78750
Attention: Jesus Portillo
Email: jportillo@mondee.com
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attention: Compliance Department
in each case, with a copy to:
Reed Smith LLP
599 Lexington Avenue, 22nd Floor
New York, NY 10022
Attention: Lynwood Reinhardt and Panos Katsambas
10.3Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
10.4[Reserved]
10.5Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants, any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
10.6Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.
10.7Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
10.8Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
10.9Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder (i) for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders, and (ii) to provide for the delivery of Alternative Issuance pursuant to Section 4.4. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the vote or written consent of the Registered Holders of a majority of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and Section 3.2, respectively, without the consent of the Registered Holders.
10.10Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
10.11Limitation of Liability. No provision hereof, in the absence of any affirmative action by the holder of a Warrant to exercise such Warrant to purchase shares of Common Stock, and no enumeration herein of the rights or privileges of the holders of the Warrants, shall give rise to any liability of any such holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
10.12Remedies. The holders of the Warrants, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of the rights under this Agreement and the Warrants. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and the Warrants and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
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| MONDEE HOLDINGS, INC.
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| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent |
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[Signature Page to the Warrant Agreement]
EXHIBIT A
[Form of Warrant Certificate]
[FACE]
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSON EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER (“RULE 144A”) OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS FOR THE BENEFIT OF THE COMPANY THAT: (A) IT IS (I) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) (A “QIB”) AND (II) ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB; OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT,
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT (AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS SECURITY), ONLY: (A)(I) FOR SO LONG AS THE SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QIB THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT (PROVIDED THAT PRIOR TO SUCH TRANSFER, THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT), (III) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a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
(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (2) ABOVE.
NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
THE FOREGOING RESTRICTIVE LEGEND MAY BE REMOVED BY THE COMPANY OR AT THE REQUEST OF A HOLDER OF THE SECURITY IF SUCH SECURITY NO LONGER CONSTITUTES A “RESTRICTED SECURITY” WITHIN THE MEANING OF RULE 144 OR IN CONNECTION WITH A TRANSFER FOLLOWING WHICH SUCH SECURITY WOULD NO LONGER CONSTITUTE A “RESTRICTED SECURITY”.
Number
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
MONDEE HOLDINGS, INC.
Incorporated Under the Laws of Delaware
CUSIP [●]
Warrant Certificate
This warrant certificate (this “Warrant Certificate”) certifies that [●], or registered assigns, is the registered holder of warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase one share of Class A common stock, of $0.0001 par value per share (“Common Stock”), of Mondee Holdings, Inc., a Delaware corporation (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable shares of Common Stock as set forth below, at the exercise price (the “Warrant Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Each whole Warrant is initially exercisable for one fully paid and non-assessable share of Common Stock. No fractional shares will be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in a share of Common Stock, the Company will, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the Warrant holder. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Warrant Price per share of Common Stock for any Warrant is equal to the applicable Strike Price per share. The Warrant Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.
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| MONDEE HOLDINGS, INC.,
as the Company |
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| By: | |
| Name: | |
| Title: | |
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
as Warrant Agent |
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| By: | |
| Name: | |
| Title: | |
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to the Second Amended and Restated Warrant Agreement dated as of August [●], 2024 (the “Warrant Agreement”), duly executed and delivered by the Company, Mondee Holdings, Inc., a Delaware corporation, to Continental Stock Transfer & Trust Company, a New York corporation, as Warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Warrant Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company, except as otherwise specified in the Warrant Agreement.
Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby [irrevocably elects to]/[elects to conditionally] exercise the right, represented by this Warrant Certificate[, subject to the consummation of [________]], to receive shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of Mondee Holdings, Inc., a Delaware corporation (the “Company”), in the amount of $[●] in accordance with the terms hereof. The undersigned requests that a certificate for such shares of Common Stock be registered in the name of [●], whose address is [●], and that such shares of Common Stock be delivered to [●], whose address is [●]. If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of [●], whose address is [●], and that such Warrant Certificate be delivered to [●], whose address is [●].
In the event that the Warrant is to be exercised through cashless exercise (i) the number of shares of Common Stock that this Warrant is exercisable for would be determined in accordance with the section 3.3.1(c) of the Warrant Agreement and (ii) the holder hereof shall complete the following: The undersigned hereby [irrevocably/conditionally, subject to the consummation of [ ],] elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of [●], whose address is [●], and that such Warrant Certificate be delivered to [●], whose address is [●].
[Signature Page Follows]
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
SCHEDULE I
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| Investor | Number of whole Warrants with a Strike Price of $0.01 | Number of whole Warrants with a Strike Price the lower of $1.00 or VWAP |
| [●], 202414 | TUESDAY INVESTOR LP | | |
| September 30, 202615 | TUESDAY INVESTOR LP | | |
| September 30, 202716 | TUESDAY INVESTOR LP | | |
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| Investor | Number of whole Warrants with a Strike Price of $0.01 | Number of whole Warrants with a Strike Price the lower of $1.00 or VWAP |
| [●], 202417 | NH CREDIT PARTNERS III HOLDINGS L.P. | | |
| September 30, 202618 | NH CREDIT PARTNERS III HOLDINGS L.P. | | |
| September 30, 202719 | NH CREDIT PARTNERS III HOLDINGS L.P. | | |
14 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
15 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
16 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
17 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
18 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
19 Note to Draft: 88.3% of such warrants to issued to Tuesday Investor LP with the balance to be issued to NH CREDIT PARTNERS III HOLDINGS L.P.
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of August [●], 2024, is made and entered into by and among Mondee Holdings, Inc., a Delaware corporation (the “Company”) (formerly known as ITHAX Acquisition Corp., an exempted company incorporated in the Cayman Islands with limited liability), each person listed on the signature pages under the caption “Holders” or who execute a Joinder hereto pursuant to Section 5.2 hereof (collectively, the “Holders” and each, an “Holder”) and the holder of a majority of the Registrable Securities (as defined in the Second Amended and Restated Rights Agreement (as defined below)) (the “Required Holder”), which amends and restates that certain second amended and restated registration rights agreement, dated as of December 14, 2023, by and among the Company and the investors party thereto (the “Second Amended and Restated Registration Rights Agreement”).
RECITALS
WHEREAS, on September 29, 2022 (the “Original Issue Date”), the Company and certain investors (such investors, collectively, the “Original Third-Party Investors”) entered into those Subscription Agreements (collectively, the “Original Subscription Agreement”) whereby the Original Third-Party Investors purchased an aggregate of 85,000 shares of preferred stock, par value $0.0001 per share, of the Company (the “Original Investor Shares”) in a transaction exempt from Registration under the Securities Act;
WHEREAS, in connection with the sale of the Original Investor Shares, on the Original Issue Date, the Company entered into that certain warrant agreement, between the Company and Continental Stock Transfer & Trust Company, as warrant agent (the “Original Warrant Agreement”), pursuant to which the Company issued to the Original Third-Party Investors 1,275,000 Company warrants (the “Original Warrants”), which Original Warrants are exercisable into shares of Common Stock (the “Original Conversion Shares”);
WHEREAS, on each of October 17, 2023 and the date hereof, certain investors (such investors, the “Incremental Third-Party Investors” and, together with the Original Third-Party Investors, the “Third-Party Investors”) purchased an aggregate of 11,300 shares of Series A-3 preferred stock, par value $0.0001 per share, of the Company (the “Incremental Investor Shares”) in a transaction exempt from registration under the Securities Act pursuant to those certain Subscription Agreements, dated as of October 17, 2023 and the date hereof, entered into by and between the Company and the Incremental Third-Party Investors (the “Incremental Subscription Agreements” and, together with the Original Subscription Agreement, the “Subscription Agreements”);
WHEREAS, in connection with the sale of the Incremental Investor Shares, on December 14, 2023, the Company entered into that certain amended and restated warrant agreement, between the Company and Continental Stock Transfer & Trust Company, as warrant agent (the “Agent”) (the “First Amendment Warrant Agreement”), pursuant to which the Company issued to the Incremental Third-Party Investors 1,275,000 warrants thereunder in exchange for surrendering their respective Original Warrants (the “First Amendment Replacement Warrants”) and an additional 150,000 Company warrants plus an additional 19,500 whole warrants (the “First Amendment Incremental Warrants” and, together with the Replacement Warrants, the “First Amendment Warrants”), which First Amendment Warrants are exercisable into shares of Common Stock (the “First Amendment Conversion Shares”);
WHEREAS, as of the date hereof, the Company entered in that certain Amendment and Restatement of Second Amended and Restated Certificate of Designation (the “Certificate of Designation”) pursuant to which the Incremental Third-Party Investors agreed to amend the terms of the Series A Preferred Stock (as defined in the Certificate of Designation), and in connection therewith, (i) the Company entered into a warrant agreement, dated the date hereof, between the Company and the Agent, pursuant to which the Company issued to the Incremental Third-Party Investors 1,444,500 warrants thereunder in exchange for surrendering their respective First Amendment Warrants (the “Second Amendment Replacement Warrants”) and (i) the Company entered into a warrant agreement, dated the date hereof, between the Company and the Agent, pursuant to which the Company will issue up to the greater of (a) ten percent (10%) of the total amount of outstanding shares of Common Stock of the Company as of the date hereof or (b) 9,464,967 whole warrants to the Incremental Third-Party Investors (the “New Penny Warrants” and together with the Second Amendment Replacement Warrants, the “Warrants”), which Warrants are exercisable into shares of Common Stock (the “Conversion Shares”)
WHEREAS, (i) the Company previously filed with the Commission (as defined hereinafter) a Registration Statement (File No. 333-271532) on Form S-1, which registered the resale of an aggregate of up to 79,019,171 shares of Common Stock (as defined hereinafter) (including certain shares of Common Stock held by the Original Third-Party Investors) and was declared effective by the Commission as of May 10, 2023, as supplemented thereafter with one or more final prospectuses, and (ii) pursuant to the Original Registration Rights Agreement, the Company filed with the Commission a Registration Statement (File No. 333- 268198) on Form S-1, which registered the resale of the Original Conversion Shares and was declared effective by the Commission as of December 9, 2022, which registration statements were amended by the post-effective amendment to Form S-1 on Form S-3 filed on August 14, 2023 and declared effective by the Commission on August 22, 2023 (such registration statements, collectively the “Existing Registration Statement” and such final prospectuses, collectively the “Initial Prospectus”); and, for the avoidance of doubt, the Existing Registration Statement and the Initial Prospectus constitute, solely to the extent of any portion of the Registrable Securities covered thereby, a Registration Statement and Prospectus (each as defined in this Agreement), respectively, under this Agreement.
WHEREAS, the parties desire to amend and restate the Second Amended and Restated Registration Rights Agreement hereby superseding and replacing the terms of the Second Amended and Restated Registration Rights Agreement, and the undersigned Required Holder has agreed to such amendments and modifications; and
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Article I
DEFINITIONS
Section I.1Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or the Chief Financial Officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be and (iii) the Company has a bona fide business purpose for not making such information public.
“Agent” shall have the meaning given in the Recitals hereto.
“Agreement” shall have the meaning given in the Preamble hereto.
“Block Trade” shall have the meaning given in Section 2.4.1.
“Board” shall mean the Board of Directors of the Company.
“Business Combination Agreement” shall mean that certain Business Combination Agreement, dated December 20, 2021, by and among ITHAX Acquisition Corp., a Cayman Islands exempted company and predecessor to the Company, Mondee Holdings II, Inc., a Delaware corporation, and the other parties thereto.
“Certificate of Designation” shall have the meaning given in the Recitals hereto.
“Closing Date” shall be the date hereof.
“Commission” shall mean the Securities and Exchange Commission.
“Common Stock” shall mean shares of Class A Common Stock, par value $0.0001, of the Company.
“Company” shall have the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.
“Conversion Shares” shall have the meaning set forth in the Recitals hereto.
“Demanding Holder” shall have the meaning given in Section 2.1.4.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Existing Registration Statement” shall have the meaning given in the Recitals hereto.
“First Amendment Conversion Shares” shall have the meaning given in the Recitals hereto.
“First Amendment Incremental Warrants” shall have the meaning given in the Recitals hereto.
“First Amendment Replacement Warrants” shall have the meaning given in the Recitals hereto.
“First Amendment Warrants” shall have the meaning given in the Recitals hereto.
“First Amendment Warrant Agreement” shall have the meaning given in the Recitals hereto.
“Form S-1 Shelf” shall have the meaning given in Section 2.1.1.
“Form S-3 Shelf” shall have the meaning given in Section 2.1.1.
“Holder Information” shall have the meaning given in Section 4.1.2.
“Holders” shall have the meaning given in the Preamble hereto, for so long as such person or entity holds any Registrable Securities.
“Incremental Investor Shares” shall have the meaning given in the Recitals hereto.
“Incremental Subscription Agreements” shall have the meaning given in the Recitals hereto.
“Incremental Third-Party Investors” shall have the meaning given in the Recitals hereto.
“Initial Prospectus” shall have the meaning given in the Recitals hereto.
“Joinder” shall have the meaning given in Section 5.2.5.
“Maximum Number of Securities” shall have the meaning given in Section 2.1.5.
“Minimum Takedown Threshold” shall have the meaning given in Section 2.1.4.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
“New Penny Warrants” shall have the meaning given in the Recitals hereto.
“Original Conversion Shares” shall have the meaning given in the Recitals hereto.
“Original Investor Shares” shall have the meaning given in the Recitals hereto.
“Original Issue Date” shall have the meaning given in the Recitals hereto.
“Original Registration Rights Agreement” shall mean that certain registration rights agreement, dated as of September 29, 2022, by and among the Company and the investors party thereto.
“Original Subscription Agreement” shall have the meaning given in the Recitals hereto.
“Original Third-Party Investors” shall have the meaning given in the Recitals hereto.
“Original Warrant Agreement” shall have the meaning given in the Recitals hereto.
“Original Warrants” shall have the meaning given in the Recitals hereto.
“Other Coordinated Offering” shall have the meaning given in Section 2.4.1.
“Permitted Transferees” shall mean any person or entity to whom such Holder is not prohibited from transferring such Registrable Securities in accordance with applicable law.
“Piggyback Registration” shall have the meaning given in Section 2.2.1.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security” shall mean (a) any outstanding shares of Common Stock or any other equity security (including warrants to purchase shares of Common Stock (including the Warrants) and shares of Common Stock issued or issuable upon the exercise of any such warrants (including the Warrants) or other equity security) of the Company held by a Holder immediately following the Closing Date; and (b) any other equity security of the Company or any of its subsidiaries issued or issuable with respect to any securities referenced in clause (a) above, including any Penalty Warrants (as defined in the Incremental Subscription Agreements) or by way of a stock dividend or stock split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement by the applicable Holder; (B) (i) such securities shall have been otherwise transferred, (ii) new certificates for such securities not bearing (or book entry positions not subject to) a legend restricting further Transfer shall have been delivered by the Company and (iii) subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Rule 144 or any successor rule promulgated under the Securities Act (but with no volume or other restrictions or limitations including as to manner or timing of sale); and (E) such securities have been sold to, or through, a broker, dealer or Underwriter in a public distribution or other public securities transaction.
“Registration” shall mean a registration, including any related Shelf Takedown, effected by preparing and filing a registration statement, Prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration Expenses” shall mean the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:
(A)all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any national securities exchange on which the Common Stock is then listed;
(B)fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);
(C)printing, messenger, telephone and delivery expenses;
(D)fees and disbursements of counsel for the Company;
(E)fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration including the expenses of any special audits and/or “cold comfort” letters required by or incident to such performance and compliance;
(F)reasonable and documented fees and disbursements of counsel (including local and special counsel, to the extent necessary) incurred in connection with any registration statement or registered offering (including any Registration) covering Registrable Securities;
(G)in an Underwritten Offering or Other Coordinated Offering, reasonable and documented fees and expenses not to exceed $50,000 in the aggregate for each Registration of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders; and
(H)any Underwriter marketing costs in connection with a Piggyback Registration.
“Registration Statement” shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement (including the Existing Registration Statement, solely to the extent of any portion of the Registrable Securities covered thereby), including the Prospectus included in such registration statement (including the Initial Prospectus, solely to the extent of any portion of the Registrable Securities covered thereby), amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Replacement Warrants” shall have the meaning given in the Recitals hereto.
“Required Holder” shall have the meaning given in the Preamble hereto.
“Second Amended and Restated Registration Rights Agreement” shall have the meaning given in the Preamble hereto.
“Second Amendment Replacement Warrants” shall have the meaning given in the Recitals hereto.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf” shall mean the Form S-1 Shelf, the Form S-3 Shelf or any Subsequent Shelf Registration Statement, as the case may be.
“Shelf Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“Shelf Takedown” shall mean an Underwritten Shelf Takedown or any proposed Transfer or sale using a Registration Statement, including a Piggyback Registration.
“Subscription Agreements” shall have the meaning set forth in the Recitals hereto.
“Subsequent Shelf Registration Statement” shall have the meaning given in Section 2.1.2.
“Third-Party Investors” shall have the meaning set forth in the Recitals hereto.
“Transfer” shall mean the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
“Underwritten Shelf Takedown” shall have the meaning given in Section 2.1.4.
“Warrants” shall have the meaning set forth in the Recitals hereto.
“Withdrawal Notice” shall have the meaning given in Section 2.1.6.
Article II
REGISTRATIONS AND OFFERINGS
Section II.1Shelf Registration.
II.1.1Filing. Within thirty (30) calendar days following the Closing Date, the Company shall submit to or file with the Commission a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or a Registration Statement for a Shelf Registration on Form S-3 (the “Form S-3 Shelf”), if the Company is then eligible to use a Form S-3 Shelf, in each case, covering the resale of all the Registrable Securities that are not at that time covered by the Existing Registration Statement (as then in effect and available for resale of the Registrable Securities covered thereby) (determined as of two (2) business days prior to such submission or filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as practicable after the filing thereof, but no later than the earlier of (a) the ninetieth (90th) calendar day (or 120th calendar day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing Date, and (b) the tenth (10th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. The Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to (i) convert the Form S-1 Shelf (and any Subsequent Shelf Registration Statement) to a Form S-3 Shelf or (ii) file a Form S-3 Shelf, as the case may be, in each case, as soon as practicable after the Company is eligible to use Form S-3. The Company’s obligation under this Section 2.1.1, shall, for the avoidance of doubt, be subject to Section 3.4.
II.1.2Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using its
commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration Statement”) registering the resale of all Registrable Securities (determined as of two (2) business days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration Statement is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration Statement shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration Statement continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration Statement shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration Statement shall be on another appropriate form. The Company’s obligation under this Section 2.1.2, shall, for the avoidance of doubt, be subject to Section 3.4.
II.1.3Additional Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, the Company, upon written request of a Holder, shall promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s option, any then available Shelf (including by means of a post-effective amendment) or by filing a Subsequent Shelf Registration Statement and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration Statement shall be subject to the terms hereof; provided, however, that the Company shall only be required to cause such Registrable Securities to be so covered twice per calendar year for each of the Holders.
II.1.4Requests for Underwritten Shelf Takedowns. Subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, a Holder (any of the Holders being in such case, a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding Holders, with an anticipated gross aggregate offering price of at least $10 million (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to Section 2.4.4, the Company shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the initial Demanding Holder’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). The Holders may demand not more than two (2) Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period (such rights, in each such case, a “Demand”). Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then effective Registration Statement, including a Form S-3, which is then available for such offering.
II.1.5Reduction of Underwritten Offering. If the Underwriter in an Underwritten Shelf Takedown advises the Demanding Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Demanding Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting (such maximum number of such securities, the “Maximum Number of Securities”) shall be allocated among all participating Holders thereof, including the Demanding Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each participating Holder; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.
II.1.6Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Shelf Takedown, a majority-in-interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten Shelf Takedown; provided that the Holders may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by the Holders or any of their respective Permitted Transferees, as applicable. If withdrawn, a Demand for an Underwritten Shelf Takedown shall constitute a Demand for an Underwritten Shelf Takedown by the withdrawing Demanding Holder for purposes of Section 2.1.4, unless either (i) such Demanding Holder has not previously withdrawn any Underwritten Shelf Takedown or (ii) such Demanding Holder reimburses the Company for all Registration Expenses with respect to such Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided that, if the Holders elect to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by the Holders for purposes of Section 2.1.4. Following the receipt of any Withdrawal Notice, the Company shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Shelf Takedown. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.1.6, other than if a Demanding Holder elects to pay such Registration Expenses pursuant to clause (ii) of the second sentence of this Section 2.1.6.
Section II.2Piggyback Registration.
II.2.1Piggyback Rights. If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for holders of capital stock other than the Holders) any of its Common Stock under the Securities Act in connection with the public offering of such securities solely for cash (other than (i) the registration statement on Form S-1 (File No. 333-266277) and any post-effective amendments thereto (except to the extent such registration statement is amended or supplemented after the Original Issue Date to include additional shares of Common Stock or warrants of the Company, any shares of Common Stock or warrants of the Company to be sold for the account of the Company, or any additional selling stockholders not already named therein, but excluding any amendment or supplement to reflect transactions arising out of or in connection with the Business Combination Agreement), (ii) a registration relating solely to the sale of securities to participants in a Company stock or other benefit plan, (iii) a transaction covered by Rule 145 under the Securities Act, (iv)
a registration in which the only stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered, (v) for a dividend reinvestment plan or (vi) any registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities), then the Company shall give written notice of such proposed offering to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such registered offering, a “Piggyback Registration”). Subject to Section 2.2.2, the Company shall cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested by the Holders pursuant to this Section 2.2.1 to be included therein on the same terms and conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder agreement to enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering.
II.2.2Reduction of Piggyback Registration. If the total amount of securities, including Registrable Securities, requested by Holders of Registrable Securities to be included in such offering exceeds the amount of securities sold other than by the Company that the Underwriters determine in their reasonable discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the Underwriters determine in their reasonable discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling security holders according to the total amount of securities entitled to be included therein owned by each selling security holder or in such other proportions as shall mutually be agreed to by such selling security holders). For purposes of the preceding parenthetical concerning apportionment, for any selling security holder which is a Holder of Registrable Securities and which is a partnership or corporation, the partners, retired partners and holders of capital stock of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling security holder,” and any pro-rata reduction with respect to such “selling security holder” shall be based upon the aggregate number of Registrable Securities owned by all entities and individuals included in such “selling security holder,” as defined in this sentence.
II.2.3Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.1.6) shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. The Company (whether on its own
good faith determination or as the result of a request for withdrawal by persons or entities pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration (which, in no circumstance, shall include a Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.2.3.
II.2.4Unlimited Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6, any Piggyback Registration effected pursuant to Section 2.2 hereof shall not be counted as a Demand for an Underwritten Shelf Takedown under Section 2.1.4 hereof.
Section II.3Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company (other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriters, each Holder that is an executive officer, director or Holder in excess of five percent (5 %) of the outstanding Common Stock (and for which it is customary for such a Holder to agree to a lock-up) agrees that it shall not Transfer any shares of Common Stock or other equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent of the Company, during the forty-five (45)-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing of such offering, except as expressly permitted by such lock-up agreement or in the event the managing Underwriters otherwise agree by written consent; provided, however, with respect to the first Underwritten Offering following the Original Issue Date, if the managing Underwriters, in their reasonable discretion, advise the Company in writing that a lock-up restriction of a period of forty-five (45) or fewer days would have a material adverse impact on such Underwritten Offering, then such lock-up restrictions shall be for the number of days such managing Underwriters so advise, not to exceed a period of ninety (90) days from the date of the pricing of any such Underwritten Offering. Each such Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the same terms and conditions as all such Holders).
Section II.4Block Trades; Other Coordinated Offerings.
II.4.1Notwithstanding any other provision of this Article II, but subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal, (an “Other Coordinated Offering”), in each case, with an anticipated aggregate offering price of, either (x) at least $5 million or (y) all remaining Registrable Securities held by the Demanding Holder, then such Demanding Holder only needs to notify the Company of the Block Trade or Other Coordinated Offering at least five (5) business days prior to the day such offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the Company and any Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering.
II.4.2Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to the Company, the Underwriter or Underwriters (if any) and any brokers, sale agents or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.4.2.
II.4.3Notwithstanding anything to the contrary in this Agreement, Section 2.2 shall not apply to a Block Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement.
II.4.4The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the Underwriters and any brokers, sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized investment banks).
II.4.5A Holder may demand no more than two (2) Block Trades or Other Coordinated Offerings pursuant to this Section 2.4 in any twelve (12) month period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.4 shall not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.1.4 hereof.
Article III
COMPANY PROCEDURES
Section III.1General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, security holders or partners), and pursuant thereto the Company shall, as expeditiously as possible:
III.1.1prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities have ceased to be Registrable Securities, in each case, in accordance with Section 2.1.1;
III.1.2prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold;
III.1.3prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration
Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
III.1.4prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
III.1.5cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the Company are then listed;
III.1.6provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
III.1.7advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
III.1.8at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
III.1.9promptly notify the Holders in writing at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;
III.1.10in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent pursuant to such Registration, permit a
representative of the Holders, the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
III.1.11obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel) in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
III.1.12in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, as applicable;
III.1.13in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;
III.1.14make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
III.1.15with respect to an Underwritten Offering pursuant to Section 2.1.4, use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
III.1.16otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration.
Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter or broker, sales agent or placement agent if such Underwriter or broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.
Section III.2Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs (except in connection with a Piggyback Registration) and, other than as set forth in the definition of “Registration Expenses,” all fees and expenses of any legal counsel representing the Holders.
Section III.3Requirements for Participation in Registration Statement in Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide the Company with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration of the applicable Registration Statement or Prospectus and such Holder continues thereafter to withhold such information. No person or entity may participate in any Underwritten Offering or other offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person or entity (i) agrees to sell such person’s or entity’s securities on the basis provided in any underwriting, sales, distribution or placement arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required under the terms of such underwriting, sales, distribution or placement arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.
Section III.4Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.
III.4.1Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed (which the Company undertakes to provide as promptly as practicable once such Misstatement is corrected or otherwise no longer exists).
III.4.2If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control or (c) in the good faith judgment of the Board, be seriously detrimental to the Company and its holders of capital stock and it is therefore essential to defer such filing, initial effectiveness or continued use at such time, the Company shall have the right, upon giving prompt written notice of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under this Section 3.4.2,
the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from the Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents.
III.4.3(a) During the period starting with the date ninety (90) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date ninety (90) days after the effective date of, a Company-initiated Registration and provided that the Company continues to actively employ, in good faith, all reasonable efforts to maintain the effectiveness of the applicable Shelf Registration Statement, or (b) if, pursuant to Section 2.1.4, Holders have requested an Underwritten Shelf Takedown and the Company and Holders are unable to obtain the commitment of Underwriters to firmly underwrite such offering, the Company may, upon giving prompt written notice of such action to the Holders, delay any other registered offering pursuant to Section 2.1.4 or Section 2.4 for not more than ninety (90) consecutive calendar days or more than one hundred twenty (120) total calendar days in each case during any twelve (12)-month period.
Section III.5Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the Original Issue Date pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell the Registrable Securities held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule then in effect). Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
Article IV
INDEMNIFICATION AND CONTRIBUTION
Section IV.1Indemnification.
IV.1.1The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, managers, directors, affiliates, and agents and each person or entity who controls such Holder (within the meaning of the Securities Act), against all losses, claims, damages, liabilities and out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) caused by, resulting from, arising out of or based upon any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus or preliminary Prospectus in the light of the circumstances under which they were made, not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by or on behalf of such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
IV.1.2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement, Prospectus or preliminary Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its officers, managers, directors, affiliates and agents and each person or entity who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus or preliminary Prospectus in the light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statement or omission is contained in (or not contained in, in the case of an omission) any information or affidavit so furnished in writing by or on behalf of such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
IV.1.3Any person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
IV.1.4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person or entity of such indemnified party and shall survive the Transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.
IV.1.5If the indemnification provided under Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Section 4.1.1, Section 4.1.2 and Section 4.1.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.1.5. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.1.5 from any person or entity who was not guilty of such fraudulent misrepresentation.
Article V
MISCELLANEOUS
Section V.1Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: Mondee Holdings, Inc., 10800 Pecan Park Blvd., Suite 315, Austin, Texas 78750 Attn: Jesus Portillo, and, if to any Holder, at such Holder’s address, electronic mail address or facsimile number as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1.
Section V.2Assignment; No Third-Party Beneficiaries.
V.2.1This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
V.2.2Subject to Section 5.2.4 and Section 5.2.5, this Agreement and the rights, duties and obligations of a Holder hereunder may be assigned in whole or in part to such Holder’s Permitted Transferees; provided, that each of the Holders shall be permitted to transfer its rights hereunder as such Holders to one or more affiliates or any direct or indirect partners, members or equity holders of such Holder (it being understood that no such transfer shall reduce any rights of such Holder or such transferees).
V.2.3This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.
V.2.4This Agreement shall not confer any rights or benefits on any persons or entities that are not parties hereto, other than as expressly set forth in this Agreement and this Section 5.2.
V.2.5No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) an executed joinder to this Agreement from such assignee in the form of Exhibit A attached hereto (a “Joinder”). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void.
Section V.3Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries 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, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section V.4Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT (1) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AND (2) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE ANY STATE OR FEDERAL COURTS SITTING IN NEW YORK COUNTY IN THE STATE OF NEW YORK.
Section V.5TRIAL BY JURY. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY, BY AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.5.
Section V.6Amendments and Modifications. Upon the written consent of (a) the Company and (b) the Holders of a majority of the total Registrable Securities, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
Section V.7Other Registration Rights. The Company represents and warrants that, except as already disclosed by the Company in its public filings with the Commission, no person or entity, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account or for the account of any other person or entity. For so long as any Holder and such Holder’s affiliates hold, in the aggregate, at least fifty percent (50%) of the Warrants (including the form of Conversion Shares) originally issued to such Holder pursuant to the Subscription Agreements, the Company hereby agrees and covenants that it will not grant rights to register any Common Stock (or securities convertible into, or exchangeable or exercisable for, Common Stock) under the Securities Act pursuant to which such grantee would have more favorable Demands or treatment with respect to pro rata reduction than those granted to the Holders hereunder without the prior written consent of Holders of a majority of the total Registrable Securities.
Section V.8Term. This Agreement shall terminate on the earlier of (a) the fifth anniversary of the Original Issue Date (b) with respect to any Holder, on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.5 and Article IV shall survive any termination.
Section V.9Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder.
Section V.10Existing Registration Statements. Notwithstanding anything herein to the contrary and subject to applicable law and regulation, the Company may satisfy any obligation (in whole or in part) hereunder to file a Registration Statement or to have a Registration Statement become effective by a specified date by designating, by notice to the Holders, a registration statement that previously has been filed with the Commission or become effective, as the case may be, as the relevant Registration Statement for purposes of satisfying such obligation, and all references to any such obligation shall be construed accordingly; provided, that such previously filed registration statement may be amended to add the number of Registrable Securities, and, to the extent necessary, to identify as selling stockholders those Holders demanding or entitled to the filing of a Registration Statement pursuant to the terms of this Agreement. To the extent this Agreement refers to the filing or effectiveness of other registration statements by or at a specified time and the Company has, in lieu of then filing such registration statements or having such registration statements become effective, designated a previously filed or
effective registration statement as the relevant registration statement for such purposes in accordance with the preceding sentence, such references shall be construed to refer to such designated registration statement, solely with respect to any Registrable Securities covered thereby.
Section V.11Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
Section V.12Entire Agreement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
COMPANY:
Mondee Holdings, Inc.
a Delaware corporation
By: /s/ Prasad Gundumogula
Name: Prasad Gundumogula
Title: Chief Executive Officer
HOLDERS:
Tuesday Investor LLC
By: [***]
Name:
Title:
NH Credit Partners III Holdings L.P.
By: [***]
Name:
Title:
Exhibit A
REGISTRATION RIGHTS AGREEMENT JOINDER
The undersigned is executing and delivering this joinder (this “Joinder”) pursuant to the Third Amended and Restated Registration Rights Agreement, dated as of August [●], 2024 (as the same may hereafter be amended, the “Registration Rights Agreement”), among Mondee Holdings, Inc., a Delaware corporation (the “Company”), and the other persons or entities named as parties therein. Capitalized terms used but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.
By executing and delivering this Joinder to the Company, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the Registration Rights Agreement as a Holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement, and the undersigned’s Warrants and shares of Common Stock with respect to which this Joinder is being entered into shall be included as Registrable Securities under the Registration Rights Agreement to the extent provided therein.
Accordingly, the undersigned has executed and delivered this Joinder as of the __________ day of _____________.
Signature of Stockholder
Print Name of Stockholder
Its:
Address:
Acknowledged as of
____________, 20__
Mondee Holdings, Inc.
By:
Name:
Its:
146569933v13 EXECUTION VERSION Certain identified information marked with “[***]” has been omitted from this document because it is both (i) not material and (ii) the type that the registrant treats as private or confidential. AMENDMENT NO. 21 TO FINANCING AGREEMENT AMENDMENT NO. 21, dated as of August 14, 2024 (this "Amendment"), to the Financing Agreement, dated as of December 23, 2019 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the "Financing Agreement"), by and among Mondee Holdings, Inc., a Delaware corporation (the "Parent"), each subsidiary of the Parent listed as a "Borrower" on the signature pages thereto (together with each other Person that executes a joinder agreement and becomes a "Borrower" thereunder, each a "Borrower" and collectively, the "Borrowers"), each subsidiary of the Parent listed as a "Guarantor" on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a "Guarantor" thereunder or otherwise guaranties all or any part of the Obligations, each a "Guarantor" and collectively, the "Guarantors"), the lenders from time to time party thereto (each a "Lender" and collectively, the "Lenders"), TCW Asset Management Company LLC, a Delaware limited liability company ("TCW"), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Administrative Agent") and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the "Revolving Agent" and together with the Administrative Agent, each an "Agent" and collectively, the "Agents"). WHEREAS, the Loan Parties, the Agents and the Lenders have agreed to amend the Financing Agreement and wish to memorialize such amendment in this Amendment, subject to the terms and conditions set forth herein. NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Definitions. All terms used herein that are defined in the Financing Agreement and not otherwise defined herein shall have the meanings assigned to them in the Financing Agreement (after giving effect to this Amendment) (as so amended, the “Amended Financing Agreement”). 2. Amendments. (a) Amended Financing Agreement. The Financing Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on the pages of the Financing Agreement attached as Annex A hereto. (b) Schedules. The Financing Agreement is hereby amended by removing certain Schedules to the Financing Agreement and replacing them with the corresponding Schedules attached as Annex B hereto.
- 2 - 146569933v13 (c) Amendment No. 13. Section 2(c)(i)(A) of Amendment No. 13 (as further amended by Amendment No. 16, as further amended by Amendment No. 17 and as further amended by Amendment No. 20) is hereby amended and restated in its entirety to read as follows: “(A) pursuant to this Amendment, as subsequently amended by Amendment No. 16, Amendment No. 17 and Amendment No. 20, the Agents and the Lenders have consented to the deferment by the Loan Parties of a portion of the principal payment that would otherwise have been due on March 29, 2024 in the amount of $1,717,542.64 (the “Deferred March Principal Payment”), which Deferred March Principal Payment shall, on the Amendment No. 21 Effective Date, be deferred until the Final Maturity Date;” (d) Amendment No. 16. Section 2(d) of Amendment No. 16 (as amended by Amendment No. 17) is hereby amended and restated in its entirety to read as follows: “(d) Payment Schedule. In reliance upon the representations and warranties made by the Loan Parties set forth in Section 3 below and subject to the satisfaction of the conditions to effectiveness set forth in Section 4 below: (i) pursuant to this Amendment, as subsequently amended by Amendment No. 17, the Agents and the Lenders have consented to the deferment by the Loan Parties of a portion of the principal payment that would otherwise have been due on June 28, 2024 in the amount of $1,731,189.36 (the “Deferred June Principal Payment”), which Deferred June Principal Payment shall, on the Amendment No. 21 Effective Date, be deferred until the Final Maturity Date; (ii) pursuant to this Amendment, as subsequently amended by Amendment No. 17, the Agents and the Lenders have consented to the deferment by the Loan Parties of a portion of the interest payment that would otherwise have been due on June 28, 2024, in the amount of $3,974,974.13 (the “Deferred June Interest Payment”), which Deferred June Interest Payment shall be paid on the Amendment No. 21 Effective Date by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan (other than the Term Loans held by Wingspire) on the Amendment No. 21 Effective Date, as reflected in Section 2.01(a)(viii) of the Financing Agreement.” 3. Representations and Warranties. Each Loan Party hereby represents and warrants to the Agents and the Lenders as follows on the Amendment No. 21 Effective Date (as defined below) after giving effect to this Amendment: (a) Representations and Warranties; No Event of Default. (i) The representations and warranties in Article VI of the Financing Agreement and in each other Loan Document are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification on and as of each such date)
- 3 - 146569933v13 on and as of the Amendment No. 21 Effective Date, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing as of the date hereof or as of the Amendment No. 21 Effective Date or would result from this Amendment becoming effective in accordance with its terms. (b) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing (other than SkyLink Travel, Inc., a California corporation) under the laws of the state, province, territory or other jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings under the Financing Agreement, and to execute and deliver this Amendment and each other Loan Document to which it is a party, and to consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except (solely for the purposes of this subclause (iii)) where the failure to be so qualified or in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. (c) Authorization, Etc. The execution, delivery and performance by each Loan Party of this Amendment and the performance by it of the Financing Agreement, as amended hereby, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene (A) any of its Governing Documents, (B) any applicable material Requirement of Law or (C) any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties, except, in the case of this clause (iv), to the extent such contravention, default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect. (d) Enforceability of Loan Documents. This Amendment and the Financing Agreement, as amended hereby, is a legal, valid and binding obligation of each Loan Party party hereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by principles of equity. (e) Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance of this Amendment and the Financing Agreement, as amended hereby, by any Loan Party party hereto. 4. Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction in full, in a manner reasonably satisfactory to the Agents, of the following
- 4 - 146569933v13 conditions precedent (the first date upon which all such conditions shall have been satisfied (or waived) being hereinafter referred to as the “Amendment No. 21 Effective Date”): (a) Payment of Fees, etc. The Borrowers shall have paid on or before the Amendment No. 21 Effective Date, (i) $142,804.62 of the Amendment No. 12 Fee due and payable in cash on the Amendment No. 21 Effective Date pursuant to Section 2.06(a)(iv) of the Amended Financing Agreement and (ii) all fees, costs and expenses due and payable to the Agents and the Lenders under the Loan Documents that have been invoiced on or prior to the Amendment No. 21 Effective Date (including the reasonable costs and expenses incurred by the Agents in connection with the preparation, execution and delivery of this Amendment), including the fees, costs and expenses of Paul Hastings, LLP, as counsel to the L/C Issuer. (b) Representations and Warranties; No Event of Default. The following statements shall be true and correct (after giving effect to this Amendment): (A) the representations and warranties contained in this Amendment, Article VI of the Financing Agreement and in each other Loan Document are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to "materiality" or "Material Adverse Effect" in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of the Amendment No. 21 Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date) and (B) no Default or Event of Default shall have occurred and be continuing on the Amendment No. 21 Effective Date or would result from this Amendment becoming effective in accordance with its terms. (c) Delivery of the Loan Documents. The Agents shall have received on or before the Amendment No. 21 Effective Date the following, each in form and substance reasonably satisfactory to the Agents and, unless indicated otherwise, dated as of the Amendment No. 21 Effective Date: (i) this Amendment, duly executed and delivered by the Loan Parties, the Agents and the Lenders; (ii) a certificate of the Authorized Officer of each Loan Party certifying as to the matters set forth in Section 4(b); (iii) the results of searches for any effective UCC financing statements, tax Liens or judgment Liens filed against any Loan Party or its property, which results shall not show any such Liens (other than Permitted Liens); (iv) a certificate of an Authorized Officer of each Loan Party, certifying (A) that there have been no material changes to the Governing Documents of each Loan Party since copies of such Governing Documents were last delivered to the Administrative Agent, (B) as to a copy of the resolutions or written consents of such Loan Party authorizing (1) the transactions contemplated by this Amendment and the other Loan Documents to which such Loan Party is or will be a party, and (2) the execution, delivery and performance by such Loan
- 5 - 146569933v13 Party of this Amendment, each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith and (C) the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers; (v) a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Amendment No. 21 Effective Date as to the subsistence in good standing of such Loan Party (other than SkyLink Travel, Inc., a California corporation) in such jurisdictions, together with written confirmation (where available) on the Amendment No. 21 Effective Date from such official(s) as to such matters; (vi) a certificate of the chief financial officer of the Parent and Mondee, certifying as to the solvency of each Loan Party (after giving effect to the transactions effected on the Amendment No. 21 Effective Date); (vii) an opinion of Akin Gump Strauss Hauer & Feld LLP, counsel to the Loan Parties, as to such matters as the Agents may reasonably request; and (viii) a copy of the Amendment and Restatement of Second Amended and Restated Certificate of Designation, dated as of August 14, 2024, by and among Mondee Holdings, Inc. and the Preferred Majority Holders (as defined therein), duly executed by the parties thereto. (d) Payment of Term Loan A Payment. The Administrative Agent shall have received, on or prior to the Amendment No. 21 Effective Date, the Term Loan A Payment #1 (as defined in the Amended Financing Agreement) in an amount not less than $2,500,000 for the account of the Term Loan A Lenders, in accordance with their Pro Rata Shares. 5. Conditions Subsequent to Effectiveness. The Loan Parties agree that, in addition to all other terms, conditions and provisions set forth in this Amendment, including, without limitation, those conditions to the Amendment No. 21 Effective Date set forth herein, each Loan Party shall, and shall cause each of its Subsidiaries to, deliver to the Administrative Agent or comply with each of the following, within the time periods set forth below (it being understood that the failure by the Loan Parties to perform or cause to be performed any such condition subsequent shall constitute an immediate Event of Default (without giving effect to any grace periods set forth in the Financing Agreement)): (a) Within fifteen (15) Business Days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received with respect to (i) the Canadian Loan Party and (ii) the Loan Parties organized in Illinois, Virginia and Michigan, a certificate of the
- 6 - 146569933v13 appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of such Loan Party certifying as of a recent date not more than 30 days prior to the Amendment No. 21 Effective Date as to the subsistence in good standing of such Loan Party in such jurisdictions, together with written confirmation (where available) on the Amendment No. 21 Effective Date from such official(s) as to such matters. (b) Within fifteen (15) Business Days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), an opinion of local counsel in Illinois, Virginia, Michigan and Canada, in each case, as to such matters as the Agents may reasonably request. (c) Within fifteen (15) Business Days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received a Perfection Certificate, dated as of the applicable date after the Amendment No. 21 Effective Date. (d) Unless waived by the Administrative Agent in its sole discretion, within thirty (30) Business Days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, each in form and substance reasonably satisfactory to the Administrative Agent, all Control Agreements required under the Loan Documents, each duly executed by, in addition to the applicable Loan Party, the applicable financial institution. (e) Unless waived by the Administrative Agent in its sole discretion, within thirty (30) days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received evidence of the insurance coverage required by Section 7.01(h) of the Financing Agreement, with such endorsements as to the named insureds or loss payees thereunder as the Administrative Agent may reasonably request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days' prior written notice to the Administrative Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Administrative Agent may request. (f) Unless waived by the Administrative Agent in its sole discretion, within thirty (30) days after the Amendment No. 21 Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Loan Parties shall use commercially reasonable efforts to deliver to the Administrative Agent a landlord waiver, in form and substance satisfactory to the Administrative Agent and which may be included as a provision contained in the relevant Lease, executed by each landlord with respect to each of the Leases in respect of its chief executive office. (g) Within sixty (60) days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received the amendments to the Brazil Security Documents, solely to the extent necessary to maintain existing security interests or the perfection thereof in
- 7 - 146569933v13 connection with the entry into and performance by the Loan Parties of this Amendment, and all other resolutions, documents, certificates and/or instruments, in connection with the execution and delivery of such amendments to the Brazil Security Documents, each in form and substance satisfactory to the Administrative Agent. (h) Within three (3) days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received an opinion of Akin Gump Strauss Hauer & Feld LLP, counsel to the Loan Parties, as to creation and perfection of security interests under the Loan Documents and as to such matters as the Agents may reasonably request. (i) Within sixty (60) days after the Amendment No. 21 Effective Date (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received a certificate of the appropriate official(s) of the jurisdiction of organization of SkyLink Travel, Inc., a California corporation, certifying as of a recent date as to the subsistence in good standing of such Loan Party. 6. Continued Effectiveness of the Financing Agreement and Other Loan Documents. Each Loan Party hereby (a) acknowledges and consents to this Amendment, (b) confirms and agrees that the Financing Agreement and each other Loan Document (in each case, as amended or otherwise modified by this Amendment) to which it is a party is, and shall continue to be, other than as expressly set forth in this Amendment, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Amendment No. 21 Effective Date, all references in any such Loan Document to the “Financing Agreement”, the “Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Financing Agreement shall mean the Financing Agreement as amended by this Amendment, and (c) confirms and agrees that to the extent that, any such Loan Document purports to assign or pledge to any Agent for the benefit of the Secured Parties (or any of them), or to grant to any Agent, for the benefit of the Secured Parties (or any of them), a security interest in or Lien on any Collateral as security for the Obligations of the Loan Parties from time to time existing in respect of the Financing Agreement and the other Loan Documents (in each case, as amended or otherwise modified by this Amendment), such pledge, assignment and/or grant of the security interest or Lien is, subject to the release thereof as expressly set forth in this Amendment or as set forth in the relevant governing agreement, hereby ratified and confirmed in all respects. This Amendment does not and shall not affect any of the obligations of the Loan Parties, other than as expressly provided herein, including, without limitation, the Loan Parties' obligations to repay the Loans in accordance with the terms of Financing Agreement, or the obligations of the Loan Parties under any Loan Document to which they are a party, all of which obligations shall remain in full force and effect (in each case, as amended or otherwise modified by this Amendment). Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Agent or any Lender under the Financing Agreement or any other Loan Document, nor constitute a waiver of any provision of the Financing Agreement or any other Loan Document. 7. No Novation. Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Financing Agreement or instruments securing
- 8 - 146569933v13 the same, which shall remain in full force and effect, except as modified hereby. 8. No Representations by Agent or Lenders. Each Loan Party hereby acknowledges that it has not relied on any representation, written or oral, express or implied, by any Agent or any Lender, other than those expressly contained herein, in entering into this Amendment. 9. Release. Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the "Releasors") does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the "Released Parties"), from any and all debts, claims, allegations, obligations, damages, costs, attorneys' fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment No. 21 Effective Date directly arising out of, connected with or related to this Amendment, the Financing Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agents or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans or other advances, or the management of such Loans or other advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby. 10. Miscellaneous. (a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart of this Amendment. (b) Section and paragraph headings herein are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
146569933v13 (c) This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York. (d) Each Loan Party hereby acknowledges and agrees that this Amendment constitutes a "Loan Document" under the Financing Agreement. (e) Any provision of this Amendment 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 portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. (f) This Amendment shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that (i) none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void and (ii) any assignment by a Lender shall be subject to Section 12.07(b) of the Financing Agreement. [Remainder of page intentionally left blank.] - 9 -
[Amendment No. 21 to Financing Agreement] 146569933v13 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first page hereof. BORROWERS: MONDEE, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO C&H TRAVEL AND TOURS INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO MONDEE CANADA INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: Vice-President SKYLINK TRAVEL, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO SKYLINK TRAVEL, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO SKYLINK TRAVEL, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO SKYLINK TRAVEL, SFO INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO
[Amendment No. 21 to Financing Agreement] 146569933v13 TRANS AM TRAVEL, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO HARI-WORLD TRAVEL GROUP, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO EXPLORETRIP IP HOLDINGS, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO EXPLORETRIP, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO MONDEE ACQUISITION COMPANY INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO TRANSWORLD TRAVEL, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO
[Amendment No. 21 to Financing Agreement] 146569933v13 COSMOPOLITAN TRAVEL SERVICE, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO COSMOPOLITAN TRAVEL SERVICES INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO ROCKETRIP, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO SKYPASS TRAVEL INC. By: /s/ Jesus Portillo Name: Jesus Portillo Title: Secretary and Treasurer SKYPASS HOLIDAYS LLC By: /s/ Jesus Portillo Name: Jesus Portillo Title: Secretary and Treasurer PURPLE GRIDS INC By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: Chief Executive Officer
[Amendment No. 21 to Financing Agreement] 146569933v13 GUARANTORS: MONDEE HOLDINGS, INC. By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: CEO MONDEE HOLDINGS II, LLC By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: Manager MONDEE BRAZIL, LLC By: /s/ Prasad Gundumogula Name: Prasad Gundumogula Title: Manager
[Amendment No. 21 to Financing Agreement] 146569933v13 ADMINISTRATIVE AGENT: TCW ASSET MANAGEMENT COMPANY LLC By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director
[Amendment No. 21 to Financing Agreement] 146569933v13 REVOLVING AGENT: WINGSPIRE CAPITAL LLC By: /s/ Christopher Coutu Name: Christopher Coutu Title: Senior Managing Director
[Amendment No. 21 to Financing Agreement] 146569933v13 LENDERS: WEST VIRGINIA DIRECT LENDING LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director TCW SKYLINE LENDING LP By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director NJ/TCW DIRECT LENDING LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director TCW BRAZOS FUND LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director
[Amendment No. 21 to Financing Agreement] 146569933v13 TCW DIRECT LENDING VII LLC By: TCW Asset Management Company LLC, its Investment Advisor By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director TCW DIRECT LENDING STRUCTURED SOLUTIONS 2019 LLC By: TCW Asset Management Company LLC, its Investment Manager By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director US SPECIALTY INSURANCE COMPANY By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director SAFETY NATIONAL CASUALTY CORP By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director
[Amendment No. 21 to Financing Agreement] 146569933v13 TCW DL VII FINANCING LLC By: TCW Asset Management Company LLC, its Investment Manager By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director
[Amendment No. 21 to Financing Agreement] 146569933v13 RELIANCE STANDARD LIFE INSURANCE COMPANY By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: /s/ Suzanne Grosso Name: Suzanne Grosso Title: Managing Director
[Amendment No. 21 to Financing Agreement] 146569933v13 NH CREDIT PARTNERS III HOLDINGS L.P. By: MS Credit Partners III GP L.P., its general partner By: MS Credit Partners III GP Inc., its general partner By: /s/ Griffin Coakley Name: Griffin Coakley Title: Authorized Signer
[Amendment No. 21 to Financing Agreement] 146569933v13 WINGSPIRE CAPITAL LLC By: /s/ Christopher Coutu Name: Christopher Coutu Title: Senior Managing Director
146569933v13 ANNEX A Amended Financing Agreement (See Attached)
146569933v13 ANNEX B Schedules (See Attached)
146576709v1146576709v15 ANNEX A to Amendment No. 21 CONFORMED THROUGH AMENDMENT NO. 20 FINANCING AGREEMENT Dated as of December 23, 2019 by and among MONDEE HOLDINGS, INC., as Parent, EACH SUBSIDIARY OF THE PARENT LISTED AS A BORROWER ON THE SIGNATURE PAGES HERETO, as Borrowers, THE PARENT AND EACH SUBSIDIARY OF THE PARENT LISTED AS A GUARANTOR ON THE SIGNATURE PAGES HERETO, as Guarantors, THE LENDERS FROM TIME TO TIME PARTY HERETO, as Lenders, and TCW ASSET MANAGEMENT COMPANY LLC, as Administrative Agent, and WINGSPIRE CAPITAL LLC, as Revolving Agent FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE LOANS ARE BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. REQUESTS FOR INFORMATION REGARDING THE ORIGINAL ISSUE DISCOUNT ON THE LOANS MAY BE DIRECTED TO MONDEE, INC., 10800 PECAN PARK BLVD, SUITE 130, AUSTIN, TX 78750.
- i - 146576709v1146576709v15 Table of Contents Page ARTICLE I DEFINITIONS; CERTAIN TERMS ______________________________________ 1 Section 1.01 Definitions _______________________________________________ 2 Section 1.02 Terms Generally __________________________________________ 64 Section 1.03 Certain Matters of Construction ______________________________ 64 Section 1.04 Accounting and Other Terms ________________________________ 65 Section 1.05 Time References __________________________________________ 66 Section 1.06 SPAC Restructuring _______________________________________ 66 Section 1.07 Rates ___________________________________________________ 66 ARTICLE II THE LOANS ______________________________________________________ 67 Section 2.01 Commitments ____________________________________________ 67 Section 2.02 Making the Loans _________________________________________ 68 Section 2.03 Repayment of Loans; Evidence of Debt ________________________ 71 Section 2.04 Interest _________________________________________________ 73 Section 2.05 Reduction of Commitments; Prepayment of Loans _______________ 74 Section 2.06 Fees ___________________________________________________ 78 Section 2.07 SOFR Option ____________________________________________ 79 Section 2.08 Funding Losses __________________________________________ 83 Section 2.09 Taxes __________________________________________________ 83 Section 2.10 Increased Costs and Reduced Return __________________________ 87 Section 2.11 Changes in Law; Impracticability or Illegality ___________________ 88 Section 2.12 Mitigation Obligations; Replacement of Lenders _________________ 89 Section 2.13 Incremental Term Loan ____________________________________ 90 ARTICLE III [INTENTIONALLY OMITTED] ______________________________________ 92 ARTICLE IV APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF BORROWERS __________________________________ 92 Section 4.01 Payments; Computations and Statements _______________________ 92 Section 4.02 Sharing of Payments ______________________________________ 93 Section 4.03 Apportionment of Payments ________________________________ 93 Section 4.04 Defaulting Lenders ________________________________________ 94 Section 4.05 Administrative Borrower; Joint and Several Liability of the Borrowers _______________________________________________ 95 ARTICLE V CONDITIONS TO LOANS __________________________________________ 97 Section 5.01 Conditions Precedent to Effectiveness _________________________ 97 Section 5.02 Conditions Precedent to All Loans ___________________________ 101 Section 5.03 Conditions Subsequent to Effectiveness ______________________ 102 ARTICLE VI REPRESENTATIONS AND WARRANTIES __________________________ 104 Section 6.01 Representations and Warranties _____________________________ 104
- ii - 146576709v1146576709v15 ARTICLE VII COVENANTS OF THE LOAN PARTIES AND OTHER COLLATERAL MATTERS ___________________________________________________________ 112 Section 7.01 Affirmative Covenants ____________________________________ 112 Section 7.02 Negative Covenants ______________________________________ 125 Section 7.03 Financial Covenants ______________________________________ 131 ARTICLE VIII CASH MANAGEMENT ARRANGEMENTS AND OTHER COLLATERAL MATTERS ______________________________________________ 133 Section 8.01 Cash Management Arrangements ____________________________ 133 ARTICLE IX EVENTS OF DEFAULT ___________________________________________ 134 Section 9.01 Events of Default ________________________________________ 134 Section 9.02 Cure Right _____________________________________________ 138 ARTICLE X AGENTS ________________________________________________________ 139 Section 10.01 Appointment ____________________________________________ 139 Section 10.02 Nature of Duties; Delegation _______________________________ 141 Section 10.03 Rights, Exculpation, Etc ___________________________________ 141 Section 10.04 Reliance _______________________________________________ 142 Section 10.05 Indemnification _________________________________________ 143 Section 10.06 Agents Individually ______________________________________ 143 Section 10.07 Successor Agent _________________________________________ 143 Section 10.08 Collateral Matters ________________________________________ 144 Section 10.09 Agency for Perfection ____________________________________ 146 Section 10.10 No Reliance on any Agent's Customer Identification Program _____ 146 Section 10.11 No Third Party Beneficiaries _______________________________ 146 Section 10.12 No Fiduciary Relationship _________________________________ 146 Section 10.13 Reports; Confidentiality; Disclaimers ________________________ 147 Section 10.14 Intercreditor Agreement and Subordination Agreement ___________ 147 Section 10.15 Collateral Custodian ______________________________________ 148 Section 10.16 Administrative Agent May File Proofs of Claim ________________ 148 Section 10.17 Erroneous Distribution ____________________________________ 148 ARTICLE XI GUARANTY ____________________________________________________ 149 Section 11.01 Guaranty _______________________________________________ 149 Section 11.02 Guaranty Absolute _______________________________________ 149 Section 11.03 Waiver ________________________________________________ 150 Section 11.04 Continuing Guaranty; Assignments __________________________ 150 Section 11.05 Subrogation ____________________________________________ 151 Section 11.06 Contribution ____________________________________________ 151 Section 11.07 Provisions Applicable to Canadian Loan Parties ________________ 152 ARTICLE XII MISCELLANEOUS ______________________________________________ 153 Section 12.01 Notices, Etc ____________________________________________ 153 Section 12.02 Amendments, Etc ________________________________________ 155 Section 12.03 No Waiver; Remedies, Etc _________________________________ 157
- iii - 146576709v1146576709v15 Section 12.04 Expenses; Taxes; Attorneys' Fees ___________________________ 157 Section 12.05 Right of Set-off __________________________________________ 158 Section 12.06 Severability ____________________________________________ 158 Section 12.07 Assignments and Participations _____________________________ 159 Section 12.08 Counterparts ____________________________________________ 162 Section 12.09 GOVERNING LAW _____________________________________ 163 Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE _______________________________________________ 163 Section 12.11 WAIVER OF JURY TRIAL, ETC __________________________ 164 Section 12.12 Consent by the Agents and Lenders __________________________ 164 Section 12.13 No Party Deemed Drafter __________________________________ 164 Section 12.14 Reinstatement; Certain Payments ___________________________ 164 Section 12.15 Indemnification; Limitation of Liability for Certain Damages _____ 165 Section 12.16 Records _______________________________________________ 166 Section 12.17 Binding Effect __________________________________________ 166 Section 12.18 Highest Lawful Rate ______________________________________ 166 Section 12.19 Confidentiality __________________________________________ 167 Section 12.20 Public Disclosure ________________________________________ 168 Section 12.21 Integration _____________________________________________ 168 Section 12.22 USA PATRIOT Act ______________________________________ 168
146576709v1146576709v15 SCHEDULES AND EXHIBITS Schedule 1.01(A)(i) Existing Term Loans Schedule 1.01(A)(ii) Redesignated Term Loans Schedule 1.01(A)(iii) Amendment No. 9 Term Loan Lenders and Commitments Schedule 1.01(A)(iv) Revolving Lenders and Commitments Schedule 1.01(A)(v) Amendment No. 21 Term Loan Lenders and Commitments Schedule 1.01(A)(vi) Term Loans Outstanding after Amendment No. 21 Effective Date Schedule 1.01(B) Facilities Schedule 1.01(C) Immaterial Foreign Subsidiaries Schedule 1.01(D) Make-Whole Calculation Schedule 6.01(e) Capitalization; Subsidiaries Schedule 6.01(f) Litigation Schedule 6.01(i) ERISA Schedule 6.01(l) Nature of Business Schedule 6.01(q) Environmental Matters Schedule 6.01(r) Insurance Schedule 6.01(u) Intellectual Property Schedule 6.01(v) Material Contracts Schedule 7.02(a) Existing Liens Schedule 7.02(b) Existing Indebtedness Schedule 7.02(e) Existing Investments Schedule 7.02(k) Limitations on Dividends and Other Payment Restrictions Schedule 8.01 Cash Management Accounts Exhibit A Form of Joinder Agreement Exhibit B Form of Assignment and Acceptance Exhibit C Form of Notice of Borrowing Exhibit D Form of SOFR Notice Exhibit E Form of Note Exhibit F Form of Compliance Certificate Exhibit 2.09(e) Forms of U.S. Tax Compliance Certificate Exhibit 7.01(a)(vi) Forms of [Monthly][Quarterly][Annual] Report - i -
- 1 - 146576709v1146576709v15 FINANCING AGREEMENT Financing Agreement, dated as of December 23, 2019, by and among Mondee Holdings, Inc., a Delaware corporation (the “Parent”), each subsidiary of the Parent listed as a “Borrower” on the signature pages hereto (together with each other Person that executes a joinder agreement and becomes a “Borrower” hereunder, each a “Borrower” and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor” on the signature pages hereto (together with the Parent and each other Person that executes a joinder agreement and becomes a “Guarantor” hereunder, each a “Guarantor” and collectively, the “Guarantors”), the lenders from time to time party hereto (each a “Lender” and collectively, the “Lenders”), TCW Asset Management Company LLC, a Delaware limited liability company (“TCW”), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the “Revolving Agent” and together with the Administrative Agent, each an “Agent” and collectively, the “Agents”). RECITALS The Borrowers have asked the Lenders to extend credit to the Borrowers consisting of (a) (i) a term loan A in the aggregate principal amount of $30,000,00027,956,058.04 as of the Amendment No. 921 Effective Date consisting of (A) existing term loans in the aggregate principal amount of $15,000,000 that are the subject of an Assignment and Acceptance, dated as of the Amendment No. 9 Effective Date, among certain Lenders, and (y) an additional term loan in the aggregate principal amount of $15,000,000 to be made by certain Lenders prior to the Borrowers onAmendment No. 21 Effective Date (which amount includes (1) $3,299,701.27 of PIK Amount paid in kind prior to the Amendment No. 921 Effective Date and (2) $71,402.31 of fees paid in kind prior to the Amendment No. 21 Effective Date) and (ii) (A) a term loan B in the aggregate principal amount of $137,752,696.40149,384,382.79 as of the Amendment No. 21 Effective Date consisting of existing term loans made by certain Lenders prior to the Amendment No. 921 Effective Date (which amount includes (1) $44,860,054.41 of PIK Amount paid in kind prior to the Amendment No. 21 Effective Date and (2) $3,609,268.84 of fees paid in kind prior to the Amendment No. 21 Effective Date) and (B) additional term loans in the aggregate principal amount of $15,000,000 to be made by certain Lenders to the Borrowers (i) in an amount equal to $2,500,000 on the Amendment No. 21 Effective Date and (ii) in an amount equal to $12,500,000 on the L/C Facility Closing Date and (b) a revolving credit facility in an aggregate principal amount not to exceed $15,000,000 at any time outstanding. The proceeds of the Loans shall befunded prior to the Amendment No. 21 Effective Date have been used to (A) pay fees and expenses incurred in connection with Amendment No. 9 and (B) fund general corporate purposes of the Loan Parties, including interest and fees under this Agreement. The proceeds of the Amendment No. 21 Term Loans #1 being funded on the Amendment No. 21 Effective Date shall be used to fund the Term Loan A Payment #1 in an amount not less than $2,500,000. The proceeds of the Amendment No. 21 Term Loans #2 to be funded on the L/C Facility Closing Date shall be used to (A) fund the Term Loan A Payment #2 and (B) fund general corporate purposes of the Loan Parties. The Borrowers hereby acknowledge and agree that the aggregate principal amount of the term loans outstanding immediately prior to the Amendment No. 921 Effective Date (which amount
- 2 - 146576709v1146576709v15 includes PIK Amount paid in kind prior to the Amendment No. 21 Effective Date and fees paid in kind prior to the Amendment No. 21 Effective Date) is equal to $152,752,696.44177,340,440.83. The Lenders are severally, and not jointly, willing to extend such credit to the Borrowers subject to the terms and conditions hereinafter set forth. In consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS; CERTAIN TERMS Section 1.01 Definitions. As used in this Agreement, the following terms shall have the respective meanings indicated below: “18 Month Anniversary Date” has the meaning set forth in the definition of “Applicable Margin”. “Account Debtor” means, with respect to any Person, each debtor, customer or obligor in any way obligated on or in connection with any Account of such Person. “Acquired EBITDA” means, with respect to any Acquired Entity or Business for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business (determined in accordance with the definition of “Consolidated EBITDA”). “Acquired Entity or Business” has the meaning specified therefor in the definition of “Consolidated EBITDA.” “Acquisition” means the acquisition (whether by means of a merger, consolidation, amalgamation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person. “Action” has the meaning specified therefor in Section 12.12. “Additional Amount” has the meaning specified therefor in Section 2.09(a). “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. “Administration Fee” has the meaning specified therefor in Section 2.06(c). “Administrative Agent” has the meaning specified therefor in the preamble hereto. “Administrative Agent's Account” means an account at a bank designated by the Administrative Agent from time to time as the account into which the Loan Parties shall make all
- 3 - 146576709v1146576709v15 payments to the Administrative Agent for the benefit of the Secured Parties under this Agreement and the other Loan Documents. “Administrative Borrower” has the meaning specified therefor in Section 4.05. “Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be considered an “Affiliate” of any Loan Party. “After Acquired Property” has the meaning specified therefor in Section 6.01(a). “Agent” and “Agents” have the meaning specified therefor in the preamble hereto. “Agent Advances” has the meaning specified therefor in Section 10.08(a). “Agreement” means this Financing Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to this Agreement as the same may be in effect at the time such reference becomes operative. “Amadeus Contract” means that certain Strategic Alliance Agreement, dated as of January 1, 2019, by and between Amadeus North America, Inc. and Mondee. “Amendment No. 2” means Amendment No. 2 to Financing Agreement, dated as of May 1, 2020, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Amendment No. 2 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 2. “Amendment No. 2 Equity Contribution” means an equity contribution to the Parent from an equity investor reasonably acceptable to the Administrative Agent providing for Net Cash Proceeds to the Parent of not less than $11,000,000 on terms and conditions reasonably acceptable to the Administrative Agent. “Amendment No. 3” means Amendment No. 3 to Financing Agreement, dated as of September 3, 2020, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Amendment No. 3 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 3.
- 4 - 146576709v1146576709v15 “Amendment No. 4” means Amendment No. 4 to Financing Agreement, dated as of June 22, 2021, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Amendment No. 4 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 4. “Amendment No. 5” means Amendment No. 5 to Financing Agreement, dated as of December 31, 2021, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Amendment No. 5 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 5. “Amendment No. 6” means Amendment No. 6 to Financing Agreement, dated as of April 15, 2022, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Amendment No. 6 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 6. “Amendment No. 7” means Amendment No. 7 to Financing Agreement, dated as of July 8, 2022, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Amendment No. 7 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 7. “Amendment No. 8” means Amendment No. 8 to Financing Agreement, dated as of October 24, 2022, among the Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Amendment No. 8 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 8. “Amendment No. 9” means Amendment No. 9 to Financing Agreement, dated as of January 11, 2023, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 9 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 9. “Amendment No. 9 Fee” has the meaning specified therefor in Section 2.06(a)(ii). “Amendment No. 9 Term Loan” means, collectively, the Loans made by the Amendment No. 9 Term Loan Lenders to the Borrowers pursuant to Section 2.01(a)(iii).
- 5 - 146576709v1146576709v15 “Amendment No. 9 Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make the Amendment No. 9 Term Loan to the Borrowers in the amount set forth in Schedule 1.01(A)(iii) hereto (as amended from time to time), or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement. “Amendment No. 9 Term Loan Lender” means a Lender with an Amendment No. 9 Term Loan Commitment or an Amendment No. 9 Term Loan. “Amendment No. 10” means Amendment No. 10 to Financing Agreement, dated as of January 31, 2023, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 10 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 10. “Amendment No. 11” means Amendment No. 11 to Financing Agreement, dated as of October 13, 2023, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 11 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 11. “Amendment No. 11 Fee” has the meaning specified therefor in Section 2.06(a)(iii). “Amendment No. 12” means the Consent, Waiver and Amendment No. 12 to Financing Agreement, dated as of January 17, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 12 Effective Date” has the meaning specified therefor in Section 5 of Amendment No. 12. “Amendment No. 12 Fee” has the meaning specified therefor in Section 2.06(a)(iv). “Amendment No. 13” means Amendment No. 13 to Financing Agreement, dated as of March 11, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 13 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 13. “Amendment No. 13 Fee” has the meaning specified therefor in Section 2.06(a)(v).
- 6 - 146576709v1146576709v15 “Amendment No. 14” means the Amendment No. 14 to Financing Agreement, dated as of May 7, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 14 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 14. “Amendment No. 15” means the Amendment No. 15 to Financing Agreement, dated as of June 3, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 15 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 15. “Amendment No. 16” means the Amendment No. 16 to Financing Agreement, dated as of June 28, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 16 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 16. “Amendment No. 17” means the Amendment No. 17 to Financing Agreement, dated as of July 12, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 17 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 17. “Amendment No. 18” means the Amendment No. 18 to Financing Agreement, dated as of July 19, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 18 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 18. “Amendment No. 19” means the Amendment No. 19 to Financing Agreement, dated as of July 26, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 19 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 19. “Amendment No. 20” means the Amendment No. 20 to Financing Agreement, dated as of August 2, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto.
- 7 - 146576709v1146576709v15 “Amendment No. 20 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 20. “Amendment No. 21” means the Amendment No. 21 to Financing Agreement, dated as of August 14, 2024, among the Loan Parties party thereto, the Agents and the Lenders party thereto. “Amendment No. 21 Effective Date” has the meaning specified therefor in Section 4 of Amendment No. 21. “Amendment No. 21 Fee” has the meaning specified therefor in Section 2.06(a)(vi). “Amendment No. 21 Term Loans” means, collectively, the Amendment No. 21 Term Loans #1 and the Amendment No. 21 Term Loans #2 made by the Amendment No. 21 Term Loan Lenders to the Borrowers pursuant to Section 2.01(a)(v). “Amendment No. 21 Term Loan Commitments” means, with respect to each Lender, the commitment of such Lender to make Amendment No. 21 Term Loans to the Borrowers on the Amendment No. 21 Effective Date (such commitment, the “Amendment No. 21 Term Loan Commitment #1” and such Loans, the “Amendment No. 21 Term Loans #1”) and on the L/C Facility Closing Date (such commitment, the “Amendment No. 21 Term Loan Commitment #2” and such Loans, the “Amendment No. 21 Term Loans #2”) in the amounts set forth in Schedule 1.01(A)(v) hereto (as amended from time to time), or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement. “Amendment No. 21 Term Loan Lender” means a Lender with an Amendment No. 21 Term Loan Commitment or an Amendment No. 21 Term Loan. “American Express Contract” means that certain Master Services Agreement, dated as of January 4, 2018, by and between GBT Travel Services UK Limited d/b/a American Express Global Business Travel and Mondee. “American Express Material Contract Period” means a period (a) commencing on the last day of any Fiscal Quarter for which financial statements are delivered or required to be delivered pursuant to Section 7.01(a)(ii) that disclose revenue from the American Express Contract of greater than $7,500,000 for the twelve month period then ended and (b) ending on the last day of any Fiscal Quarter ending thereafter for which financial statements are delivered or required to be delivered pursuant to Section 7.01(a)(ii) that disclose revenue from the American Express Contract of less than or equal to $7,500,000 for the twelve month period then ended. “Anti-Bribery and Corruption Laws” has the meaning specified therefor in Section 6.01(z)(i).
- 8 - 146576709v1146576709v15 “Anti-Money Laundering Laws” means all Requirements of Law concerning or relating to terrorism or money laundering, including, without limitation, the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956-1957), the USA PATRIOT Act and the Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311- 5330 and 12U.S.C. §§ 1818(s), 1820(b) and §§ 1951-1959), and the rules and regulations thereunder, any applicable law prohibiting or directed against the financing or support of terrorist activities (including, without limitation, 18 U.S.C. §§ 2339A and 2339B), and the Canadian Anti- Terrorism Laws. “Applicable Margin” means, as of any date of determination, (a) during the period from and after the Effective Date through and including June 30, 2021, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 9.50% per annum and (ii) any SOFR Loan or any portion thereof, 10.50% per annum, (b) during the period after June 30, 2021 through and including September 30, 2021, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 8.50% per annum and (ii) any SOFR Loan or any portion thereof, 9.50% per annum, (c) during the period after September 30, 2021 through and including March 31, 2022, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 9.50% per annum and (ii) any SOFR Loan or any portion thereof, 10.50% per annum, (d) during the period after March 31, 2022 through and including the date of the consummation of the SPAC Restructuring, with respect to the interest rate of (i) any Reference Rate Loan or any portion thereof, 8.50% per annum and (ii) any SOFR Loan or any portion thereof, 9.50% per annum, and (e) thereafter, the relevant Applicable Margin shall be set at the respective level indicated below for each Fiscal Quarter based upon the average daily balance of the outstanding Term Loan Obligations during the immediately preceding Fiscal Quarter: Level Amount of Term Loan Obligations Reference Rate Loan SOFR Loan I ≥ $130,000 7.50% 8.50% II < $130,000 but ≥ $120,000 7.00% 8.00% III < $120,000 but ≥ $110,000 7.00% 7.50% IV < $110,000 6.00% 7.00% provided, however, from and after the first day of the first Fiscal Quarter following the 18 month anniversary of the consummation of the SPAC RestructuringAmendment No. 21 Effective Date (such date, the “18 Month Anniversary Date”), the Applicable Margin, with respect to the interest rate of (a) any Reference Rate Loan or any portion thereof and (b) any SOFR Loan or any portion thereof, shall be set at the Applicable Margin Level in effect on the last day of the Fiscal Quarter during which suchthe 18 Month Anniversary Date occurs.
- 9 - 146576709v1146576709v15 “Applicable Premium” means (1) prior to the consummation of the SPAC Restructuring (such date, which occurred on July 18, 2022, the “SPAC Effective Date”): (a) as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (b), (c) or (d) of the definition thereof: (i) [reserved]; (ii) [reserved]; (iii) during the period after the date that is the 30 month anniversary of the Effective Date up to and including the date that is the 42 month anniversary of the Effective Date (the “Third Period”), an amount equal to 3.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; (iv) during the period after the Third Period up to and including the date that is the 54 month anniversary of the Effective Date (the “Fourth Period”), an amount equal to 1.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; and (v) thereafter, zero; and (b) as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (a) of the definition thereof: (i) [reserved]; (ii) [reserved]; (iii) during the Third Period, an amount equal to 3.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date; (iv) during the Fourth Period, an amount equal to 1.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date; and 2022): (v) thereafter, zero; and (2) from and after the SPAC Effective Date (which occurred on July 18,
- 10 - 146576709v1146576709v15 (a) as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (b), (c) or (d) of the definition thereof: (i) during the period commencing on the SPAC Effective Date up to and including the date that is the six (6) month anniversary of the SPAC Effective Date (the “First SPAC Period”), an amount equal to 0% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; (ii) during the period after the First SPAC Period up to and including the date that is the twelve (12) month anniversary of the SPAC Effective Date (the “Second SPAC Period”), an amount equal to 1.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; and (iii) during the period after the Second SPAC Period (which ended on January 18, 2023) up to (but not including) the L/C Facility Trigger Date (the “Third SPAC Period”), an amount equal to 2.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; (iv) solely to the extent that the L/C Facility Trigger Date occurs as a result of the occurrence of the L/C Facility Closing Date, during the period commencing on the L/C Facility Trigger Date up to and including December 31, 2025 (the “Post L/C Facility Trigger Period”), an amount equal to 0.00%; and (v) (iii) thereafter, an amount equal to 2.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; and (b) as of the date of the occurrence of an Applicable Premium Trigger Event specified in clause (a) of the definition thereof: (i) during the First SPAC Period, an amount equal to 0.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date; (ii) during the Second SPAC Period, an amount equal to 1.00% times the amount of the Term Loan Obligations (other than the Applicable Premium) being paid on such date; and (iii) during the Third SPAC Period, an amount equal to 2.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the
- 11 - 146576709v1146576709v15 aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event; (iv) during the Post L/C Facility Trigger Period (if any), an amount equal to 0.00%; and (v) (iii) thereafter, an amount equal to 2.00% times the sum of (A) the aggregate amount of all Term Loan Obligations (other than the Applicable Premium) outstanding on the date of such Applicable Premium Trigger Event and (B) the aggregate amount of Term Loan Commitments immediately prior to such Applicable Premium Trigger Event. “Applicable Premium Trigger Event” means: (a) any payment by any Loan Party of all, or any part, of the principal balance of any Term Loan for any reason (including, without limitation, any optional prepayment or mandatory prepayment (other than (i) any repayment of any Term Loan pursuant to Section 2.03(b) and (ii) any mandatory prepayment of any Term Loan pursuant to Section 2.05(c)(i)), whether before or after (A) the occurrence of an Event of Default, or (B) the commencement of any Insolvency Proceeding, and notwithstanding any acceleration (for any reason) of the Term Loan Obligations (but without duplication of clause (b) or (c) of this definition below); (b) the acceleration of the Term Loan Obligations for any reason, including, without limitation, acceleration in accordance with Section 9.01, including as a result of the commencement of an Insolvency Proceeding; (c) the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Term Loan Obligations in any Insolvency Proceeding, foreclosure (whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure or the making of a distribution of any kind in any Insolvency Proceeding to any Agent, for the account of the Lenders in full or partial satisfaction of the Term Loan Obligations; or (d) the termination of this Agreement for any reason. “Assignment and Acceptance” means an assignment and acceptance entered into by an assigning Lender and an assignee, and accepted by the Administrative Agent (and the Revolving Agent, if applicable), in accordance with Section 12.07 hereof and substantially in the form of Exhibit B hereto or such other form acceptable to the Administrative Agent (and the Revolving Agent, if applicable). “Authorized Officer” means, with respect to any Person, the chief executive officer, chief operating officer, chief financial officer, corporate controller, treasurer or other financial officer performing similar functions, president or executive vice president of such Person. “Available Tenor” means, 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
- 12 - 146576709v1146576709v15 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 2.07(g)(iv). “Availability” means the difference between (a) the Total Revolving Credit Commitment and (b) the aggregate outstanding principal amount of all Revolving Loans. “Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time and any successor statute or any similar federal or state law for the relief of debtors. “Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.07(g)(i). “Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent in consultation with the Administrative Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. “Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the Administrative Agent in consultation with the Administrative Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time. “Benchmark Replacement Date” means the earlier 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
- 13 - 146576709v1146576709v15 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” means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) 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 Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), 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
- 14 - 146576709v1146576709v15 set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). “Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication). “Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.07(g) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.07(g). “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor). “Board of Directors” means with respect to (a) any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) a partnership, the board of directors of the general partner of the partnership, (c) a limited liability company, the managing member or members or any controlling committee or board of directors of such company or the sole member or the managing member thereof, and (d) any other Person, the board or committee of such Person serving a similar function. “Borrower” has the meaning specified therefor in the preamble hereto. “Brazil Security Documents” means (a) each of the Brazil share pledges over Orinter, Interep and Skypass LTDA (the “Brazil Share Pledge”), duly registered with the applicable Registry of Titles and Deeds, as well as evidence of the registration of such pledge on Orinter’s Share Register Book, Interep’s Share Register Book and Skypass LTDA’s Share Register Book, together with the respective deliverables set out or annexed or referred to therein, including, without limitation, a power of attorney granting powers for the Administrative Agent to enforce the pledge in the situations described therein, and (b) any other document governed by the laws of Brazil in connection with the Brazil Share Pledge as may reasonably be required by the Administrative Agent (acting on advice of local counsel), as each such Brazil Security Document is amended, restated, supplemented or otherwise modified from time to time.
- 15 - 146576709v1146576709v15 “Business Day” means (a) for all purposes other than as described in clause (b) below, any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required to close, and (b) with respect to the borrowing, payment or continuation of, or determination of interest rate on, SOFR Loans, any U.S. Government Securities Business Day. “Canadian A/R Transaction” means, with respect to the Canadian Subsidiary, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which the Canadian Subsidiary may sell, convey or otherwise transfer or grant a security interest in accounts receivable directly to a financing partner or a Special Purpose Subsidiary and funded by such financing partner, so long as the obligations under such Canadian A/R Transaction are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such transactions) to the Parent or any of its Subsidiaries (other than a Special Purpose Subsidiary). “Canadian A/R Related Property” means accounts receivable which are sold, conveyed, contributed or transferred pursuant to a Canadian A/R Transaction. “Canadian Anti-Terrorism Laws” shall mean the Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), and the United Nations Act (Canada) or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Corruption of Foreign Public Officials Act (Canada) the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations al-Qaida and Taliban Regulations promulgated under the United Nations Act (Canada). “Canadian Benefit Plans” means any plan, fund, program, or policy, whether oral or written, formal or informal, funded or unfunded, insured or uninsured, providing employee benefits, including medical, hospital care, dental, sickness, accident, disability, life insurance, pension, retirement or savings benefits, under which any of the Loan Parties or any Subsidiary has any liability with respect to any employee or former employee related to employment in Canada, but excluding any Canadian Pension Plans. “Canadian Collateral” means Collateral consisting of assets or interests in assets of any Canadian Loan Party or assets or interests of Loan Parties which are otherwise located in Canada, and the proceeds thereof. “Canadian DB Pension Plan” means any Canadian Pension Plan which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada). “Canadian Loan Party” means the Canadian Subsidiary and any other Loan Party organized under the laws of Canada or any province or territory thereof. “Canadian Pension Plans” means any plan or arrangement that is required to be registered under Canadian federal or provincial law and is or was established, maintained or contributed to or required to be contributed to by a Loan Party or any Subsidiary of a Loan Party for its employees or former employees, but does not include the Canada Pension Plan or the
- 16 - 146576709v1146576709v15 Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively. “Canadian Security Agreement” means the Canadian Security Agreement, dated of even date herewith, in form and substance reasonably satisfactory to the Administrative Agent, executed and delivered by any Canadian Loan Party or any other applicable Loan Party with respect to Canadian Collateral. “Canadian Security Documents” means the Canadian Security Agreement and any other agreement governed by the laws of Canada, or any province or territory thereof, which are required by the Administrative Agent and which are entered into at any time by any Loan Party in connection with this Agreement with respect to Canadian Collateral. “Canadian Subsidiary” means Skylink Travel, Inc., a corporation organized under the laws of British Columbia, Canada. “CapEx Cure Right” has the meaning specified therefor in Section 7.03(a). “CapEx Equity Contribution” has the meaning specified therefor in Section 7.03(a). “Capital Expenditures” means, with respect to any Person for any period, the sum of (a) the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed, including all Capitalized Lease Obligations, obligations under synthetic leases and capitalized software costs that are paid or due and payable during such period and (b) to the extent not covered by clause (a) above, the aggregate of all expenditures by such Person and its Subsidiaries during such period to acquire by purchase or otherwise the business or fixed assets of, or the Equity Interests of, any other Person; provided, that the term “Capital Expenditures” shall not include any such expenditures which constitute (i) expenditures by a Loan Party made in connection with the replacement, substitution or restoration of such Loan Party's assets pursuant to Section 2.05(c)(vi) from the Net Cash Proceeds of Dispositions and Extraordinary Receipts consisting of insurance proceeds or condemnation awards, (ii) expenditures financed with the proceeds received from the sale or issuance of Equity Interests to a Permitted Holder or any other Person permitted under this Agreement so long as (A) the Borrowers are not required to make a prepayment of the Loans with such proceeds pursuant to Section 2.05(c)(iii) or Section 2.05(c)(v) and (B) such proceeds are not commingled with any Loan Party's funds and, after the Control Account Deadline, are deposited in an account subject to a Control Agreement and used exclusively to fund such expenditures, (iii) a Permitted Acquisition, (iv) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding any Loan Party) and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period), and (v) the purchase price of equipment that is purchased substantially contemporaneously with the trade in of existing
- 17 - 146576709v1146576709v15 equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time. “Capitalized Lease” means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal property by such Person as lessee that is required under GAAP to be capitalized on the balance sheet of such Person. “Capitalized Lease Obligations” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP. “CARES Act” means the Coronavirus Aid, Relief and Economic Security Act, as amended, and the related rules and regulations promulgated thereunder. “CARES Act Indebtedness” means any loan or other financial accommodation under the Paycheck Protection Program established pursuant to the CARES Act under 15 U.S.C. 636(a)(36) (as added to the Small Business Act by Section 1102 of the CARES Act); provided that (a) such Indebtedness is unsecured, (b) the proceeds therefrom are used solely in a manner that is permitted by the CARES Act and (c) the Loan Parties have fully complied in all material respects with and satisfied in all material respects all eligibility requirements under the Paycheck Protection Program established pursuant to the CARES Act to incur such Indebtedness. “Cash Equivalents” means (a) marketable direct obligations issued 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 six months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated P 1 by Moody's or A 1 by Standard & Poor's; (c) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; and (f) marketable tax exempt securities rated A or higher by Moody's or A+ or higher by Standard & Poor's, in each case, maturing within 270 days from the date of acquisition thereof. “Cash Management Accounts” means the bank accounts of each Loan Party maintained at one or more Cash Management Banks listed on Schedule 8.01. “Cash Management Bank” has the meaning specified therefor in Section 8.01(a).
- 18 - 146576709v1146576709v15 “CEBA Program” means the Canada Emergency Business Account program created by the Government of Canada. “CEBA Indebtedness” means any loan or other financial accommodation under the CEBA Program, provided that (a) such Indebtedness is unsecured, (b) the proceeds therefrom are used solely in a manner that is permitted by the CEBA Program and (c) the Loan Parties have fully complied in all material respects with and satisfied in all material respects all eligibility requirements established pursuant to the CEBA Program to incur such Indebtedness. “CERCLIS” means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the United States Environmental Protection Agency. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy 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 shall, in each case, be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. “Change of Control” means each occurrence of any of the following: (a) prior to the SPAC Effective Date, the Permitted Holders cease to beneficially and of record own and control, directly or indirectly, at least the greater of (i) 30.0% of the Parent Class A Units and 50.1% of the Parent Class B Units and (ii) 80% of the percentage of the aggregate outstanding voting or economic power of the Equity Interests of the Parent that the Permitted Holders owned or controlled on the Effective Date, in each case, on a fully diluted basis; (b) from and after the SPAC Effective Date, any Person (other than the Permitted Holders) or Persons (other than one or more of the Permitted Holders) constituting a “group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person and its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becoming the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of Equity Interests representing more than 50% of the aggregate voting or economic power represented by the then issued and outstanding Equity Interests of the Parent and the percentage of aggregate voting or economic power so held is greater than the percentage of the aggregate voting or economic power represented by the Equity Interests of the Parent
- 19 - 146576709v1146576709v15 beneficially owned (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, in the aggregate by the Permitted Holders; (c) [Reserved]; (d) the Parent shall cease to have beneficial ownership (as defined in Rule 13d- 3 under the Exchange Act) of (i) 100% of the aggregate voting or economic power of the Equity Interests of each other Loan Party and each of its Subsidiaries that are not Immaterial Foreign Subsidiaries and (ii) at least 98% of the aggregate voting or economic power of each of its Subsidiaries that are Immaterial Foreign Subsidiaries (in each case, other than in connection with any transaction permitted pursuant to Section 7.02(c)(i)), free and clear of all Liens (other than Permitted Specified Liens); (e) Prasad Gundumogula shall cease to be involved in the day to day operations and management of the business of the Parent and its Subsidiaries, and a successor reasonably acceptable to the Required Lenders is not appointed on terms reasonably acceptable to the Required Lenders within 90 days of such cessation of involvement; or (f) [Reserved]. “Closing Fee” has the meaning specified therefor in Section 2.06(a)(i). “Collateral” has the meaning specified therefor in the Security Agreement. “Collections” means all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds). “Commitments” means, with respect to each Lender, such Lender's Revolving Credit Commitment and Term Loan Commitment. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. “Compliance Certificate” has the meaning assigned to such term in Section 7.01(a)(iv).
- 20 - 146576709v1146576709v15 “Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Reference Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.08 and other technical, administrative or operational matters) that the Administrative Agent decides may be reasonably necessary or 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 or appropriate in connection with the administration of this Agreement and the other Loan Documents). “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Consolid Mexico Acquisition” means the acquisition by Mondee, Mondee Acquisition Company, Inc., and the Parent of the Consolid Mexico Acquisition Assets pursuant to the Consolid Mexico Acquisition Documents. “Consolid Mexico Acquisition Agreement” means the Stock Purchase Agreement, dated as of May 12, 2023, by and among Mondee, Mondee Acquisition Company, Inc., the Parent and JC & Braham, S.A.P.I. de C.V, José Luis Castro Gómez, Abraham Shabot Cherem and Judith Guerra Aguijosa. “Consolid Mexico Acquisition Assets” means the “Shares” (as defined in the Consolid Mexico Acquisition Agreement). “Consolid Mexico Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, in form and substance satisfactory to the Administrative Agent, made by Mondee, Mondee Acquisition Company, Inc., and the Parent in favor of the Administrative Agent. “Consolid Mexico Acquisition Documents” means the Consolid Mexico Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith. “Consolid Mexico Earnout Obligations” means, collectively (a) the “Earn-Out Payment” (as defined in the Consolid Mexico Acquisition Agreement) in an aggregate amount not to exceed $1,000,000 during the term of this Agreement and (b) the issuance of the “Earn-Out Shares” (as defined in the Consolid Mexico Acquisition Agreement) in an aggregate
- 21 - 146576709v1146576709v15 amount not to exceed 400,000 shares of the Parent’s Common Stock during the term of this Agreement. “Consolid Mexico Put Right” means the put rights set forth in that certain “Put-Call Option Agreement” made and entered into as of May 12, 2023, by and between the Parent, Jose Luis Castro Gomez, an individual, Abraham Shabot Cherem, an individual, and Judith Guerra Aguijosa, an individual. “Consolid Mexico Subsidiaries” means, collectively, (a) Consolid Mexico Holding, S.A.P.I. de C.V., a sociedad anónima promotora de inversión de capital variable (“CMX Holdings”), (b) Consolid México, S.A. de C.V., a sociedad anónima de capital variable (“Consolid Mexico”), (c) Travel-Fan, S.A. de C.V., a sociedad anónima de capital variable (“Travel-Fan”), (d) CMX Travel Management, S.A. de C.V., a sociedad anónima de capital variable (“CMX Travel”), and (e) CMX Alta Dirección, S.A. de C.V., a sociedad anónima de capital variable (“CMX Alta”), in each case, organized under the laws of Mexico. “Consolidated EBITDA” means, with respect to any Person for any period: (a) the Consolidated Net Income of such Person for such period, plus (b) without duplication, the sum of the following amounts for such period to the extent deducted (other than clause (ix) below) in the calculation of Consolidated Net Income for such period: (i) any provision for United States federal income taxes or other taxes measured by net income, (ii) Consolidated Net Interest Expense, (iii) any depreciation and amortization expense, (iv) any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, (v) any transaction fees, costs and expenses incurred in connection with the consummation of the Falcon Acquisition, the initial funding of the Loans and the consummation of the other Transactions on the Effective Date, to the extent such transaction fees, costs and expenses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, (vi) any transaction fees, costs and expenses incurred in connection with any completed or potential Permitted Acquisition (including the Kilimanjaro Acquisition but excluding the Orinter Acquisition, the Interep Acquisition, the Consolid Mexico Acquisition and the Skypass Acquisition), Permitted Investment, Permitted Disposition, Equity Issuance, Capital Expenditure, refinancings, issuances or registrations of Indebtedness, or other transaction
- 22 - 146576709v1146576709v15 permitted by this Agreement, regardless of whether any such transaction is consummated, to the extent such transaction fees, costs and expenses are (A) reasonably identifiable and factually supportable, (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period and (C) in the case of any unconsummated Permitted Acquisition (other than, if applicable, the Kilimanjaro Acquisition), Permitted Investment, Permitted Disposition, Equity Issuance, Capital Expenditure, refinancings, issuances or registrations of Indebtedness, or other transaction, do not exceed 3.00% of the Consolidated EBITDA of the Parent and its Subsidiaries in the aggregate for all such unconsummated transactions for such period, (vii) any one-time extraordinary, unusual or non-recurring charges, expenses or losses to the extent such charges, expenses or losses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, (viii) any business optimization and restructuring expenses, to the extent such expenses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, (ix) (A) any pro forma cost savings, operating expense reductions, business optimizations, other operating improvements and other business synergies, and (B) any acquisition synergies for the Falcon Acquisition, the Kilimanjaro Acquisition or any other Permitted Acquisition (excluding the Orinter Acquisition, the Interep Acquisition, the Consolid Mexico Acquisition and the Skypass Acquisition) (net of the amount of actual benefits received) (calculated on a pro forma basis as though such cost savings, reductions, improvements and synergies had been realized on the first day of such period and as if such cost savings, reductions, improvements and synergies were realized during the entirety of such period), in each case, to the extent (A) such savings, reductions, improvements and synergies result from actions taken during such period, (B) the full “run rate” benefits of such savings, reductions, improvements and synergies are anticipated by the Parent (in the good faith determination of the Parent) to be fully realized within 12 months of the date on which such action is taken, (C) such savings, reductions, improvements and synergies are reasonably identifiable, factually supportable, reasonably attributable to the actions taken and reasonably anticipated to result from such actions taken and (D) have been set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, and (x) any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory), minus (c) without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period:
- 23 - 146576709v1146576709v15 (i) any credit for United States federal income taxes or other taxes measured by net income, (ii) any gain from extraordinary, unusual or non-recurring items, (iii) any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, and (iv) any other non-cash gain, including any reversal of a charge referred to in clause (b)(ix) above by reason of a decrease in the value of any Equity Interest; in each case, determined on a consolidated basis in accordance with GAAP. Notwithstanding the foregoing: (A) in no event shall the aggregate amount of all the addbacks described in clauses (v) (excluding amounts paid on or before the Effective Date), (vi), (vii), (viii) and (ix) above exceed (1) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending December 31, 2019, 30% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period), (2) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending March 31, 2020, 25% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period), (3) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending June 30, 2020, 20% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period), (4) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending September 30, 2020, 15% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period) and (5) for the 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending December 31, 2020 and for each 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries ending thereafter, 12.5% of the Consolidated EBITDA of the Parent and its Subsidiaries for such period (calculated without giving effect to such addbacks for such period); (B) for purposes of calculating the Consolidated EBITDA of the Parent and its Subsidiaries for any period, (i) the Consolidated EBITDA of theall Foreign Subsidiaries of the Parent in existence as of the Amendment No. 21 Effective Date, including Foreign Subsidiaries that are not Loan Parties in an amount in excess of the Foreign EBITDA Contribution Amount shall be disregarded, shall be included for all purposes with respect to such calculation of the Consolidated EBITDA of the Parent and its Subsidiaries for such period; and and (ii) the Consolidated EBITDA of all Foreign Subsidiaries of the Parent formed or acquired after the Amendment No. 21 Effective Date that are not Loan Parties shall be included for all purposes with respect to such calculation of the Consolidated EBITDA of the Parent and its Subsidiaries for such period solely to the extent that the amount of such Consolidated EBITDA does not exceed the Foreign EBITDA Contribution Amount (or such greater amount approved (in writing) by the Agents (in their respective sole discretion)); and (C) there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property,
- 24 - 146576709v1146576709v15 business or asset acquired by the Parent or any of its Subsidiaries during such period to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) based on the Acquired EBITDA of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a historical pro forma basis in accordance with this Agreement and, for the avoidance of doubt, without duplication of any addbacks hereunder for such period. Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA of the Parent and its Subsidiaries under this Agreement, the Acquired EBITDA in connection with the Kilimanjaro Acquisition for the Fiscal Quarters ended December 31, 2018, March 31, 2019, June 30, 2019 and September 30, 2019 shall be deemed to be $2,357,937.52, $1,624,847.16, $3,151,949.23 and $3,841,033.22 respectively, and the Acquired EBITDA in connection with the Kilimanjaro Acquisition for the twelve month period ended September 30, 2019 shall be deemed to be $10,975,767.13. “Consolidated Net Income” means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its Subsidiaries for such period; provided, however, that the following shall be excluded: (a) the net income of any other Person in which such Person or one of its Subsidiaries has a joint interest with a third-party (which interest does not cause the net income of such other Person to be consolidated into the net income of such Person), except to the extent of the amount of dividends or distributions paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such Person that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or limitation, and (c) the net income of any other Person arising prior to such other Person becoming a Subsidiary of such Person or merging or consolidating into such Person or its Subsidiaries. “Consolidated Net Interest Expense” means, with respect to any Person for any period, (a) gross interest expense of such Person and its Subsidiaries for such period determined on a consolidated basis and in accordance with GAAP (including, without limitation, interest expense paid to Affiliates of such Person), less (b) the sum of (i) interest income for such period and (ii) gains for such period on Hedging Agreements (to the extent not included in interest income above and to the extent not deducted in the calculation of gross interest expense), plus (c) the sum of (i) losses for such period on Hedging Agreements (to the extent not included in gross interest expense) and (ii) the upfront costs or fees for such period associated with Hedging Agreements (to the extent not included in gross interest expense), in each case, determined on a consolidated basis and in accordance with GAAP. “Contingent Indemnity Obligations” means any Obligation constituting a contingent, unliquidated indemnification obligation of any Loan Party, in each case, to the extent (a) such obligation has not accrued and is not yet due and payable and (b) no claim has been made or is reasonably anticipated to be made with respect thereto. “Contingent Obligation” means, with respect to any Person, any obligation of such Person guaranteeing or intending to guarantee any Indebtedness, leases, dividends or other
- 25 - 146576709v1146576709v15 obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such 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 (A) for the purchase or payment of any such primary obligation or (B) 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, assets, 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 holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith. “Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. “Control Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Administrative Agent, and in the case of any Canadian Loan Party, shall also include any such arrangement with respect to a deposit account to maintain cash management in form and substance satisfactory to the Administrative Agent. “Control Agreement Deadline” means May 31, 2020, as such deadline may be extended in accordance with Amendment No. 2. “Controlled Investment Affiliate” means, as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
- 26 - 146576709v1146576709v15 “Cure Right” has the meaning specified therefor in Section 9.02. “Current Value” has the meaning specified therefor in Section 7.01(m). “Debtor Relief Law” means the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies Creditors Arrangement Act (Canada) and the Winding-Up and Restructuring Act (Canada), and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States, Canada or other applicable jurisdiction from time to time in effect, including, without limitation, any corporate law of any jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors. “Default” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default. “Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Lender's 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 or any other Lender any other amount required to be paid by it hereunder within 2 Business Days of the date when due (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (a) upon receipt by the Administrative Agent of such portion of the Loans or other amount from such Lender), (b) has notified the Administrative Borrower, or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender's obligation to fund a Loan hereunder and states that such position is based on such Lender's determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative 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 Administrative 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, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity. Notwithstanding anything to the contrary herein, 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 permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
- 27 - 146576709v1146576709v15 Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Administrative Borrower and each Lender. “Disbursement Letter” means a disbursement letter, in form and substance satisfactory to the Administrative Agent, by and among the Loan Parties, the Administrative Agent, the Lenders and the other Persons party thereto, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with the transactions contemplated to occur on the Effective Date. “Disposition” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers, leases, licenses (as licensor) or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person. For purposes of clarification, “Disposition” shall include (a) the sale or other disposition for value of any contracts, (b) any disposition of property through a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, (c) the early termination or modification of any contract resulting in the receipt by any Loan Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification) or (d), any sale of merchant accounts (or any rights thereto (including, without limitation, any rights to any residual payment stream with respect thereto)) by any Loan Party. “Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations and the termination of the Commitments), (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends or distributions in cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute Disqualified Equity Interests, in each case of clauses (a) through (d), prior to the date that is 91 days after the Final Maturity Date. “Disqualified Lender” means any Person identified by the Administrative Borrower in writing to the Administrative Agent prior to the Effective Date as a “Disqualified Lender”. Notwithstanding anything to the contrary contained in this Agreement, (a) no Agent shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders and (b) the Administrative Borrower (on behalf of itself and the other Loan Parties) and the Lenders acknowledge and agree that no Agent shall have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Lender and that no Agent shall have any liability with respect to any assignment or participation made to a Disqualified Lender.
- 28 - 146576709v1146576709v15 “Dollar,” “Dollars” and the symbol “$” each means lawful money of the United States of America. “Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia. “Earnout Obligation” means, with respect to any Person, any earn-out, purchase price adjustment or similar obligation incurred by such Person in connection with any Acquisition (in each case, valued at the maximum potential amount thereof). “Effective Date” has the meaning specified therefor in Section 5.01. “Employee Plan” means an employee benefit plan within the meaning of Section 3(3) of ERISA (other than a Multiemployer Plan), regardless of whether subject to ERISA, that any Loan Party or any of its ERISA Affiliates maintains, sponsors or contributes to or is obligated to contribute to. “Environmental Claim” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving any alleged or actual (a) violation of or liability under any Environmental Law; or (b) manufacture, use, handling, generation, transportation, storage, treatment, Release, threatened Release or disposal or exposure to any Hazardous Materials. “Environmental Law” means any Requirement of Law relating to or concerning (i) the protection of the environment, natural resources, human health or safety, or (ii) the manufacture, use, handling, generation, transportation, storage, treatment, Release, threatened Release, presence or disposal of or exposure to any Hazardous Material. “Environmental Liability” means all liabilities (contingent or otherwise, known or unknown), monetary obligations, losses (including monies paid in settlement), damages, natural resource damages, costs and expenses (including all reasonable fees, costs, client charges and expenses of counsel, experts and consultants), fines, penalties, sanctions and interest arising directly or indirectly as a result of or based upon (a) any Environmental Claim; (b) any actual, alleged or threatened non-compliance with Environmental Law or Environmental Permit; (c) any actual, alleged or threatened Release of or exposure to Hazardous Materials; (d) any Remedial Action; (f) any environmental condition; or (g) any contract, agreement, or other arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liability. “Environmental Permit” means any permit, license, authorization, approval, registration or entitlement required by or issued pursuant to any Environmental Law or by any Governmental Authority pursuant to Environmental Law.
- 29 - 146576709v1146576709v15 “Equity Interests” means (a) all shares of capital stock (whether denominated as common stock or preferred stock), acciones, equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting and (b) all securities convertible into or exchangeable for any of the foregoing and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable or exercisable. “Equity Issuance” means either (a) the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Equity Interests or (b) the receipt by the Parent of any cash capital contributions. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections. “ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” or under “common control” within the meaning of Sections 414(b), (c), (m) or (o) of the Internal Revenue Code or Sections 4001(a)(14) or 4001(b)(1) of ERISA. “ERISA Event” means (a) the occurrence of a Reportable Event with respect to any Pension Plan; (b) the failure to meet the minimum funding standards of Section 412 or 430 of the Internal Revenue Code or Section 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA) or the failure to make a contribution or installment required under Section 412 or Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Internal Revenue Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Internal Revenue Code or Section 305 of ERISA; (e) the filing of a notice of intent to terminate a Pension Plan or the treatment of an amendment to a Pension Plan as a termination under Section 4041 of ERISA; (f) the withdrawal by any Loan Party or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to any Loan Party or any of its ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (g) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition that might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (h) the imposition of liability on any Loan Party or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069(a) of ERISA or by reason of the application of Section 4212(c) of ERISA; (i) the withdrawal of any Loan Party or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan or the receipt by any Loan Party or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has
- 30 - 146576709v1146576709v15 terminated under Section 4041A or 4042 of ERISA; (j) the occurrence of an act or omission which could give rise to the imposition of material fines, penalties, taxes or related charges on any Loan Party or any of its ERISA Affiliates under Sections 4975 or 4971 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Plan; (k) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent, upon any Loan Party or any of its ERISA Affiliates; (l) the assertion of a claim (other than routine claims for benefits) against any Employee Plan or the assets thereof, or against any Loan Party or any of its ERISA Affiliates in connection with any Employee Plan or Multiemployer Plan, in each case, that could be reasonably expected to result in a material liability to any Loan Party or any of its ERISA Affiliates; (m) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any such Pension Plan (or such other Employee Plan) to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; (n) the imposition on any Loan Party of any material fine, excise tax or penalty with respect to any Employee Plan or Multiemployer Plan resulting from any noncompliance with any Requirements of Law; (o) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan; or (p) the occurrence of any Foreign Plan Event. “Erroneous Distribution” has the meaning specified therefor in Section 10.17. “Event of Default” has the meaning specified therefor in Section 9.01. “Excess Cash Flow” means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries for such period, less (b) the sum of, without duplication, (i) all cash principal payments (excluding any principal payments made pursuant to Section 2.05(c)) on the Loans made during such period (but, in the case of the Revolving Loans, only to the extent that the Total Revolving Credit Commitment is permanently reduced by the amount of such payments), and all cash principal payments on other Indebtedness of such Person or any of its Subsidiaries during such period to the extent such other Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement (but, in the case of revolving loans, only to the extent that the revolving credit commitment in respect thereof is permanently reduced by the amount of such payments) and any premium, make- whole or penalty payments associated with any such cash principal payments (in each case, solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period (solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (iii) the cash portion of (A) Capital Expenditures (including, for the avoidance of doubt, capitalized software expenditures), (B) the Purchase Price (including the Falcon Earnout Obligations but excluding any other Earnout Obligations) in respect of Permitted Acquisitions to the extent paid during such period and (C) the purchase price in respect of Permitted Investments, in each case, made by such Person and its Subsidiaries during such period to the extent permitted to be made under this Agreement (but excluding or reducing any Capital Expenditures, Permitted Acquisitions or Permitted Investments to the extent financed through the incurrence of Indebtedness or through an Equity Issuance), (iv) all scheduled loan servicing fees and other
- 31 - 146576709v1146576709v15 similar fees in respect of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement (in each case, solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (v) income taxes paid in cash by such Person and its Subsidiaries for such period (solely to the extent not financed through the incurrence of Indebtedness (other than Revolving Loans) or through an Equity Issuance), (vi) any amounts added back to Consolidated EBITDA for such period pursuant to clauses (iv) through (viii) of the definition of Consolidated EBITDA, to the extent paid in cash and deducted in the calculation of Consolidated Net Income during such period, (vii) any amounts added back to Consolidated EBITDA for such period pursuant to clause (ix) of the definition of Consolidated EBITDA, and (viii) the excess, if any, of Working Capital at the end of such period over Working Capital at the beginning of such period (or minus the excess, if any, of Working Capital at the beginning of such period over Working Capital at the end of such period). “Excess Payables” means, as of any date of determination on or after June 30, 2020, any trade payables or other accounts payable of the Loan Parties and their Subsidiaries that, on such date, are more than 90 days past due. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Excluded Account” means (a) any deposit account specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party's employees, (b) any Petty Cash Accounts, (c) any deposit account specifically and exclusively used as cash collateral for letters of credit permitted under clause (j) of the definition of Permitted Indebtedness, (d) any segregated deposit account specifically and exclusively used to hold the proceeds of any CARES Act Indebtedness, CEBA Indebtedness or HASCAP Indebtedness, and (e) any deposit account specifically and exclusively used in connection with virtual cards, provided that the aggregate amount on deposit in all such deposit accounts which are not subject to a Control Agreement does not exceed $5,000,000 at any time. “Excluded Equity Issuance” means (a) in the event that the Parent or any of its Subsidiaries forms any Subsidiary in accordance with this Agreement, the issuance by such Subsidiary of Equity Interests to the Parent or such Subsidiary, as applicable, (b) the issuance of Permitted Cure Equity and any issuance in connection with a CapEx Equity Contribution, (c) the issuance of Equity Interests of the Parent to directors, officers and employees of the Parent and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Board of Directors of the Parent, (d) the issuance of Equity Interests of the Parent in order to finance the purchase consideration (or a portion thereof) in connection with a Permitted Acquisition, (e) the issuance of Equity Interests by the Parent to any Person so long as the amount of such issuances of Equity Interests pursuant to this clause (e) is (i) at least $500,000 for any individual issuance and (ii) not greater than $5,000,000 in the aggregate for all such issuances during the term of this Agreement (it being understood and agreed that for purposes of Section 7.03(e), the proceeds of any such issuance shall be deemed to be received by the Parent on the first day of the fiscal month in which such issuance is consummated), and (f) the issuance of Equity Interests by a Subsidiary of the Parent
- 32 - 146576709v1146576709v15 to its parent or member in connection with the contribution by such parent or member to such Subsidiary of the proceeds of an issuance described in clauses (a) – (e) above. “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal 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 not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the guarantee of such Guarantor becomes effective with respect to such related Swap Obligation. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.12(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.09, 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 2.09(e), (d) any U.S. federal withholding Taxes imposed under FATCA, and (e) in the case of Taxes under Part XIII of the Income Tax Act (Canada) imposed on amounts payable to or for the account of such Recipient as a consequence of the Recipient (A) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Loan Parties, (B) being a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Loan Parties, or (C) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Loan Parties but, for greater certainty, a Lender shall not be considered to be or deemed to be not dealing at arm’s length or a “specified shareholder” by virtue of it taking, holding, being warranted or issued or holding or enforcing any security or Lien in the Collateral. “Executive Order No. 13224” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced. “Existing Credit Facilities” means each of (a) the Senior Loan Agreement, dated as of December 20, 2018, by and among Mondee, the other Borrowers party thereto and MUFG Union Bank, N.A. and (b) the Amended and Restated Note Purchase Agreement, dated as of August 7, 2018, by and among North Haven Credit Partners II, L.P., as agent, the Holders party
- 33 - 146576709v1146576709v15 thereto, Mondee and certain other Borrowers, each as amended, modified and restated before the Effective Date. “Existing Lenders” means the lenders or note holders party to the Existing Credit Facilities. “Existing Term Loans” has the meaning specified therefor in Section 2.01(a)(ii). “Exit Fee” has the meaning specified therefor in Section 2.06(h). “Extraordinary Receipts” means any cash received by the Parent or any of its Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in Section 2.05(c)(ii) or (iii) hereof), including, without limitation, (a) foreign, United States, state or local tax refunds, (b) pension plan reversions, (c) proceeds of insurance (other than to the extent such insurance proceeds are (i) immediately payable to a Person that is not the Parent or any of its Subsidiaries in accordance with applicable Requirements of Law or with Contractual Obligations entered into in the ordinary course of business or (ii) received by the Parent or any of its Subsidiaries as reimbursement for any out-of-pocket costs incurred or made by such Person prior to the receipt thereof directly related to the event resulting from the payment of such proceeds), (d) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (e) condemnation awards (and payments in lieu thereof), (f) indemnity payments (other than to the extent such indemnity payments are (i) immediately payable to a Person that is not an Affiliate of the Parent or any of its Subsidiaries or (ii) received by the Parent or any of its Subsidiaries as reimbursement for any costs previously incurred or any payment previously made by such Person) and (g) any purchase price adjustment received in connection with any purchase agreement. “Facility” means the real property identified on Schedule 1.01(B) and any New Facility hereafter acquired by the Parent or any of its Subsidiaries, including, without limitation, the land on which each such facility is located, all buildings and other improvements thereon, and all fixtures located thereat or used in connection therewith. “Falcon Acquisition” means the acquisition by Mondee of the Falcon Acquisition Assets pursuant to the Falcon Acquisition Documents. “Falcon Acquisition Agreement” means the Equity Interest Purchase Agreement, dated as of December 20, 2019, by and between Mondee, as buyer, and the Falcon Seller, as seller, as amended by the First Amendment to Equity Interest Purchase Agreement, dated May 15, 2020. “Falcon Acquisition Assets” means the “Purchased Shares” (as defined in the Falcon Acquisition Agreement). “Falcon Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of the date hereof, and in form and substance satisfactory to the Administrative Agent, made by Mondee in favor of the Administrative Agent.
- 34 - 146576709v1146576709v15 “Falcon Acquisition Documents” means the Falcon Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith. “Falcon Disposition” has the meaning set forth in clause (k) of the definition of “Permitted Dispositions” hereof. “Falcon Earnout Obligations” means the Earnout Obligations contemplated to be paid pursuant to Section 2.2(e) of the Falcon Acquisition Agreement (as in effect on the Effective Date), in an aggregate amount not to exceed $2,700,000 during the term of this Agreement. “Falcon Seller” means Michael Thomas, an individual. “Falcon Subsidiaries” means AVIA TRAVEL AND TOURS, INC., LBF Travel, Inc. (f/k/a LBF Acquisition Corporation, Inc.) and LBF Travel Holdings, LLC. “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board. “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal, tax or regulatory legislation, rules or official practices adopted pursuant to any intergovernmental agreement, treaty or convention entered into in connection with the implementation of Sections 1471 through 1474 of the Internal Revenue Code and the Treasury Regulations thereunder. “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, 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 which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it. “Final Maturity Date” means June 30, 2025.2028; provided that the Final Maturity Date shall be August 31, 2025 if the L/C Facility Closing Date has not occurred on or prior to the date that is 60 days after the Amendment No. 21 Effective Date (or such later date as may be agreed to in writing (which may be by electronic mail) by the Agents and the Lenders in their sole discretion). “Financial Advisor” has the meaning specified therefor in Section 7.01(s). “Financial Statements” means (a) the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31, 2018 and the related consolidated statement of operations, shareholders' equity and cash flows for the Fiscal Year
- 35 - 146576709v1146576709v15 then ended, and (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the 10 months ended October 31, 2019, and the related consolidated statement of operations, shareholder's equity and cash flows for the 10 months then ended. “Fiscal Quarter” means each fiscal quarter of each Fiscal Year. “Fiscal Year” means the fiscal year of the Parent and its Subsidiaries ending on December 31 of each year. “Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of (a) Consolidated EBITDA of such Person and its Subsidiaries for such period minus Capital Expenditures made by such Person and its Subsidiaries during such period (but only to the extent such Capital Expenditures were not financed by Indebtedness or with the proceeds of Equity Interests), to (b) the sum of (i) all principal of Indebtedness of such Person and its Subsidiaries (other than Earnout Obligations) scheduled to be paid or prepaid in cash during such period to the extent there is an equivalent permanent reduction in the commitments thereunder, plus (ii) Consolidated Net Interest Expense of such Person and its Subsidiaries for such period to the extent paid or payable in cash, plus (iii) income taxes paid or payable in cash by such Person and its Subsidiaries during such period, plus (iv) cash dividends or distributions paid, or the purchase, redemption or other acquisition or retirement for value (including in connection with any merger, amalgamation or consolidation), by such Person or any of its Subsidiaries, in respect of the Equity Interests of such Person or any of its Subsidiaries (other than dividends or distributions paid by a Loan Party to any other Loan Party) during such period. “Floor” means a rate of interest equal to 1.75%. “Foreign EBITDA Contribution Amount” means, for any period, an amount (not less than zero) equal to the lesser of (a) 2.5% of Consolidated EBITDA of the Parent and its Subsidiaries for such period (to the extent Consolidated EBITDA is a positive number) and (b) $1,000,000. “Foreign Lender” has the meaning specified therefor in Section 2.09(e). “Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained, sponsored or contributed to, or for which there is an obligation to contribute to, by any Loan Party or any of its Subsidiaries that is subject to any Requirements of Laws other than, or in addition to, the laws of the United States or any state thereof or the laws of the District of Columbia. “Foreign Plan Event” means, with respect to any Foreign Plan or any Canadian Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any Requirement of Law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make any required contribution or payment under any Requirement of Law within the time permitted by any Requirement of Law for such contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or Canadian Pension Plan or to appoint a trustee or similar official to administer any such Foreign Plan or Canadian Pension Plan, or alleging the insolvency of any such Foreign Plan or Canadian Pension Plan, (d) the incurrence of any liability
- 36 - 146576709v1146576709v15 by any Loan Party or any Subsidiary under any law on account of the complete or partial termination of such Foreign Plan or Canadian Pension Plan, or the complete or partial withdrawal of any participating employer therein, or (e) the occurrence of any transaction with respect to a Foreign Plan or Canadian Pension Plan that is prohibited under any Requirement of Law and that could reasonably be expected to result in the incurrence of any material liability by any Loan Party or any Subsidiary, or the imposition on any Loan Party or any Subsidiary of any material fine, excise tax or penalty with respect to a Foreign Plan or Canadian Pension Plan resulting from any noncompliance with any Requirement of Law. “Foreign Subsidiary” means any Subsidiary of the Parent that is not a Domestic Subsidiary. “Funding Losses” has the meaning specified therefor in Section 2.08. “GAAP” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, provided that for the purpose of Section 7.03 hereof and the definitions used therein, “GAAP” shall mean generally accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the Financial Statements, provided, further, that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in Section 7.03 hereof, the Administrative Agent and the Administrative Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrowers after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the covenants in Section 7.03 hereof shall be calculated as if no such change in GAAP has occurred. “Governing Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization, and the operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, declaration or other applicable agreement or documentation evidencing or otherwise relating to its formation or organization, governance and capitalization; and (d) with respect to any of the entities described above, any other agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization. “Governmental Authority” means any nation or government, any foreign, Federal, state, territory, provincial, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency 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). “Guaranteed Obligations” has the meaning specified therefor in Section 11.01.
- 37 - 146576709v1146576709v15 “Guarantor” means (a) the Parent and each Subsidiary of the Parent listed as a “Guarantor” on the signature pages hereto, and (b) each other Person which guarantees, pursuant to Section 7.01(b) or otherwise, all or any part of the Obligations. “Guaranty” means (a) the guaranty of each Guarantor party hereto contained in Article XI hereof (including each Guarantor that becomes a party hereto pursuant to a Joinder Agreement under Section 7.01(b)) and (b) each other guaranty, in form and substance satisfactory to the Administrative Agent, made by any other Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties guaranteeing all or part of the Obligations. “HASCAP Program” means the Highly Affected Sectors Credit Availability Program established by the Government of Canada. “HASCAP Indebtedness” means any loan or other financial accommodation under the HASCAP Program, provided that (a) such Indebtedness is unsecured, (b) the proceeds therefrom are used solely in a manner that is permitted by the HASCAP Program and (c) the Loan Parties have fully complied in all material respects with and satisfied in all material respects all eligibility requirements established pursuant to the HASCAP Program to incur such Indebtedness. “Hazardous Material” means any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic or hazardous substance, hazardous waste, special waste, or solid waste or words of similar import under any Environmental Law or that is otherwise regulated under or for which liability or standards of care are imposed pursuant to any Environmental Law, including, without limitation, petroleum, polychlorinated biphenyls; asbestos-containing materials, urea formaldehyde-containing materials radioactive materials and toxic mold. “Hedging Agreement” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement. “Highest Lawful Rate” means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws applicable to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow. “Holdout Lender” has the meaning specified therefor in Section 12.02(c). “Illegality Notice” has the meaning specified therefor in Section 2.11(b).
- 38 - 146576709v1146576709v15 “Immaterial Foreign Subsidiary” means, at any time, any Foreign Subsidiary that contributed 2.5% or less of the Consolidated EBITDA and revenues, and 10.0% or less of the assets, of the Parent and its Subsidiaries for the most recently ended period for which financial statements have been delivered; provided, if at any time and from time to time after the Effective Date, Immaterial Foreign Subsidiaries comprise in the aggregate more than 5.0% of the Consolidated EBITDA of the Parent and its Subsidiaries for the most recently ended period for which financial statements have been delivered, or more than 5.0% of the revenues of the Parent and its Subsidiaries for the most recently ended period for which financial statements have been delivered or more than 10.0% of the consolidated assets of the Parent and its Subsidiaries as of the end of the most recently ended period for which financial statements have been delivered, then the Parent shall, not later than 30 days after the date by which financial statements for such period are required to be delivered (or such longer period as the Administrative Agent may agree in its sole discretion), designate in writing to the Administrative Agent that one or more of such Subsidiaries is no longer an Immaterial Foreign Subsidiary for purposes of this Agreement to the extent required such that the foregoing condition ceases to be true. Schedule 1.01(C) sets forth all of the Immaterial Foreign Subsidiaries of the Parent as of the Effective Date. For the avoidance of doubt, Orinter, Interep and the Consolid Mexico Subsidiaries shall not constitute an Immaterial Foreign Subsidiary under this Agreement. “Incremental Joinder” has the meaning specified therefor in Section 2.13(b)(i). “Incremental Term Loan A” has the meaning specified therefor in Section 2.13(b). “Incremental Term Loan A Commitments” has the meaning specified therefor in Section 2.13(a). “Indebtedness” means, with respect to any Person, 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 trade payables or other accounts payable incurred in the ordinary course of such Person's business and not constituting Excess Payables), including, for the avoidance of doubt, Earnout Obligations; (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (g) all obligations and liabilities, calculated on a basis satisfactory to the Administrative Agent and in accordance with accepted practice, of such Person under Hedging Agreements; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon
- 39 - 146576709v1146576709v15 property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer. “Indemnified Matters” has the meaning specified therefor in Section 12.15. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. “Indemnitees” has the meaning specified therefor in Section 12.15. “Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law. “Intellectual Property” has the meaning specified therefor in the applicable Security Agreement. “Interep” means Interep Representacoes Viagens E Turismo S.A., a corporation enrolled at CNPJ under No. 52.131.034/0001-19, with its headquarters in the City of Sao Paulo, State of Sao Paulo, at Rua Dr. Eduardo de Souza Aranha, No. 387, 1st floor, room 11, Vila Nova Conceicao, Zip Code 04543-121, with its bylaws filed with JUCESP under NIRE 35.202.251.631. “Interep Acquisition” means the acquisition by Mondee Brazil and the Parent of the Interep Acquisition Assets pursuant to the Interep Acquisition Documents. “Interep Acquisition Agreement” means the Share Purchase and Sale Agreement, dated as of May 12, 2023, by and among, on one side, Diana Krepinsky Rogrigues and Cynthia Sherry Ann Krepinsky Rodrigues and, on the other side, Mondee Brazil and the Parent, and further, as Intervening Party, Interep Representacoes Viagens E Turismo S.A.. “Interep Acquisition Assets” means the “Shares” (as defined in the Interep Acquisition Agreement). “Interep Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, in form and substance satisfactory to the Administrative Agent, made by Mondee Brazil and the Parent in favor of the Administrative Agent. “Interep Acquisition Documents” means the Interep Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith. “Interep Earnout Obligations” means, collectively, the deferred payment obligations contemplated to be paid pursuant to Section 4.3 of the Interep Acquisition Agreement (as in effect on the Amendment No. 11 Effective Date) in an aggregate amount not to exceed $720,000 during the term of this Agreement and the Earnout Obligations contemplated to
- 40 - 146576709v1146576709v15 be paid pursuant to Section 4.4 of the Interep Acquisition Agreement (as in effect on the Amendment No. 11 Effective Date) in an aggregate amount not to exceed $3,000,000 during the term of this Agreement. “Intercompany Subordination Agreement” means an Intercompany Subordination Agreement made by the Parent and its Subsidiaries in favor of the Administrative Agent for the benefit of the Secured Parties, in form and substance reasonably satisfactory to the Administrative Agent. “Interest Period” means, with respect to each SOFR Loan, (a) with an initial period commencing on the date of the making of such SOFR Loan (or the continuation of a SOFR Loan or the conversion of a Reference Rate Loan to a SOFR Loan) and ending 1 or 3 months thereafter, as elected by the Administrative Borrower, and (b) thereafter with a period commencing on the date of the making of such SOFR Loan (or the continuation of a SOFR Loan or the conversion of a Reference Loan to a SOFR Loan) and ending 1 or 3 months thereafter, as elected by the Administrative Borrower; provided, however, that (i) if any Interest Period would end on a day that is not a Business Day, such Interest Period shall be extended (subject to clauses (iii)-(v) below) to the next succeeding Business Day, (ii) interest shall accrue at the applicable rate based upon the Adjusted Term SOFR from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (iii) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (iv) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is 1 or 3 months after the date on which the Interest Period began, as applicable, (v) the Borrowers may not elect an Interest Period which will end after the Final Maturity Date, and (vi) no tenor that has been removed pursuant to Section 2.07(g)(iv) shall be available for specification in such Notice of Borrowing or SOFR Notice. “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended. “Inventory” means, with respect to any Person, all goods and merchandise of such Person leased or held for sale or lease by such Person, including, without limitation, all raw materials, work-in-process and finished goods, and all packaging, supplies and materials of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account or cash. “Investment” means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (c) any investment in any other items that are or would
- 41 - 146576709v1146576709v15 be classified as investments on a balance sheet of such Person prepared in accordance with GAAP. “Joinder Agreement” means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan Party made a party hereto pursuant to Section 7.01(b). “Kilimanjaro Acquisition” means the acquisition by Mondee of the Kilimanjaro Acquisition Assets pursuant to the Kilimanjaro Acquisition Documents. “Kilimanjaro Acquisition Agreement” means the Stock Purchase Agreement to be entered into by and among Mondee, as buyer, and the Kilimanjaro Sellers, as sellers. “Kilimanjaro Acquisition Assets” means the “Purchased Shares” (as defined in the Kilimanjaro Acquisition Agreement). “Kilimanjaro Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of the date of the closing of the Kilimanjaro Acquisition, and in form and substance satisfactory to the Administrative Agent, made by Mondee in favor of the Administrative Agent. “Kilimanjaro Acquisition Documents” means the Kilimanjaro Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith. “Kilimanjaro Sellers” means, collectively, Michael Melhem, Elias Melhem, Georgia Tsakos, Elias Melhem Jr. and Sanjeev Sarna. “L/C Facility” means a letter of credit facility, on terms and conditions satisfactory to the Agents and the Lenders, arranged by the Loan Parties, for the issuance by the L/C Issuer of letters of credit in an aggregate face amount of not less than $15,000,000. “L/C Facility Closing Date” means the date on which the L/C Facility is consummated and letters of credit in the aggregate face amount of not less than $15,000,000 are issued by the L/C Issuer thereunder. “L/C Facility Ticking Fee” has the meaning specified therefor in Section 2.06(i). “L/C Facility Trigger Date” means the earlier to occur of (a) the date that is 60 days after the Amendment No. 21 Effective Date (or such later date as may be agreed to in writing (which may be by electronic mail) by the Agents and the Lenders in their sole discretion) and (b) the L/C Facility Closing Date. “L/C Issuer” means Morgan Stanley or another entity designated by or acceptable to Morgan Stanley and acceptable to the Agents and the Lenders.
- 42 - 146576709v1146576709v15 “Lease” means any lease, sublease or license of, or other agreement granting a possessory interest in, real property to which any Loan Party or any of its Subsidiaries is a party as lessor, lessee, sublessor, sublessee, licensor or licensee. “Lender” has the meaning specified therefor in the preamble hereto. “Leverage Ratio” means, with respect to any Person and its Subsidiaries for any period, the ratio of (a) all Indebtedness of such Person and its Subsidiaries described in clauses (a), (b) (other than the Falcon Earnout Obligation, the Orinter Earnout Obligation and any Qualified Put Rights but including, for the avoidance of doubt, Excess Payables), (c), (d), (e) and (f) (but only to the extent such obligations or liabilities are actual and represent unreimbursed and uncollateralized draws in respect of letters of credit, acceptances and similar facilities rather than contingent liabilities) in the definition of “Indebtedness” hereunder as of the end of such period to (b) Consolidated EBITDA of such Person and its Subsidiaries for such period. “Lien” means any mortgage, deed of trust, deed to secure debt, pledge, lien (statutory or otherwise), security interest, hypothec, charge or other encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having the effect of, security. “Liquidity” means, at any time, the result of (a) Availability at such time, plus (b) Qualified Cash at such time, minus (c) the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables. “Loan” means any loan made by any Agent or any Lender to the Borrowers pursuant to Article II hereof. “Loan Account” means an account maintained hereunder by each of the Administrative Agent and the Revolving Agent on its books of account at the applicable Payment Office, and with respect to the Borrowers, in which the Borrowers will be charged with all Term Loans or Revolving Loans, as applicable, made to, and all other Obligations incurred by, the Borrowers. “Loan Document” means this Agreement, any Control Agreement, the Disbursement Letter, any Guaranty, the Intercompany Subordination Agreement, the Falcon Acquisition Collateral Assignment, the Kilimanjaro Acquisition Collateral Assignment, the Rocketrip Acquisition Collateral Assignment, the Orinter Acquisition Collateral Assignment, the Interep Acquisition Collateral Assignment, the Consolid Mexico Acquisition Collateral Assignment, the Skypass Acquisition Collateral Assignment, any Brazil Security Document, any Mexican Security Document, any Joinder Agreement, any Mortgage, any Security Agreement, any UCC Filing Authorization Letter, any landlord waiver, any collateral access agreement, any Perfection Certificate and any other agreement, instrument, certificate, report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan or any other Obligation.
- 43 - 146576709v1146576709v15 “Loan Party” means any Borrower and any Guarantor. “Management EBITDA” means, with respect to any Person for any period: (a) the Consolidated Net Income of such Person for such period, plus (b) without duplication, the sum of the following amounts for such period to the extent deducted (other than clause (ix) below) in the calculation of Consolidated Net Income for such period: (i) any provision for United States federal income taxes or other taxes measured by net income, (ii) Consolidated Net Interest Expense, (iii) any depreciation and amortization expense, (iv) any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, (v) any transaction fees, costs and expenses incurred in connection with the consummation of the Falcon Acquisition, the initial funding of the Loans and the consummation of the other Transactions on the Effective Date, to the extent such transaction fees, costs and expenses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, (vi) any transaction fees, costs and expenses incurred in connection with any completed or potential Permitted Acquisition (including the Kilimanjaro Acquisition, the Orinter Acquisition, the Interep Acquisition, the Consolid Mexico Acquisition and the Skypass Acquisition), Permitted Investment, Permitted Disposition, Equity Issuance, Capital Expenditure or other transaction permitted by this Agreement, regardless of whether any such transaction is consummated, to the extent such transaction fees, costs and expenses are (A) reasonably identifiable and factually supportable, (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period and (C) in the case of any unconsummated Permitted Acquisition (other than, if applicable, the Kilimanjaro Acquisition), Permitted Investment, Permitted Disposition, Equity Issuance, Capital Expenditure or other transaction, do not exceed 3.00% of the Consolidated EBITDA of the Parent and its Subsidiaries in the aggregate for all such unconsummated transactions for such period, (vii) any one-time extraordinary, unusual or non-recurring charges, expenses or losses to the extent such charges, expenses or losses are (A) reasonably identifiable and factually supportable and (B) set forth in
- 44 - 146576709v1146576709v15 reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, (viii) any business optimization and restructuring expenses, to the extent such expenses are (A) reasonably identifiable and factually supportable and (B) set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, (ix) (A) any pro forma cost savings, operating expense reductions, business optimizations, other operating improvements and other business synergies, and (B) any acquisition synergies for the Falcon Acquisition, the Kilimanjaro Acquisition or any other Permitted Acquisition (including the Orinter Acquisition, the Interep Acquisition, the Consolid Mexico Acquisition and the Skypass Acquisition) (net of the amount of actual benefits received) (calculated on a pro forma basis as though such cost savings, reductions, improvements and synergies had been realized on the first day of such period and as if such cost savings, reductions, improvements and synergies were realized during the entirety of such period), in each case, to the extent (A) such savings, reductions, improvements and synergies result from actions taken during such period, (B) the full “run rate” benefits of such savings, reductions, improvements and synergies are anticipated by the Parent (in the good faith determination of the Parent) to be fully realized within 12 months of the date on which such action is taken, (C) such savings, reductions, improvements and synergies are reasonably identifiable, factually supportable, reasonably attributable to the actions taken and reasonably anticipated to result from such actions taken and (D) have been set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, (x) any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory), and (xi) the amount of any negative EBITDA attributable to the Falcon Subsidiaries and Star Advantage Limited t/a Alta World Tour, in each case, from and after the Disposition thereof (calculated on a pro forma basis as though such Disposition was consummated on the first day of such period), to the extent such adjustment pursuant to this clause (xi) has been set forth in reasonable detail by the Parent in the applicable Compliance Certificate delivered hereunder for the relevant period, minus (c) without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period: (i) any credit for United States federal income taxes or other taxes measured by net income,
- 45 - 146576709v1146576709v15 (ii) any gain from extraordinary, unusual or non-recurring items, (iii) any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, and (iv) any other non-cash gain, including any reversal of a charge referred to in clause (b)(ix) above by reason of a decrease in the value of any Equity Interest; in each case, determined on a consolidated basis in accordance with GAAP. Notwithstanding the foregoing, there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by the Parent or any of its Subsidiaries during such period to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) based on the Acquired EBITDA of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a historical pro forma basis in accordance with this Agreement and, for the avoidance of doubt, without duplication of any addbacks hereunder for such period. “Material Adverse Effect” means a material adverse effect on any of (a) the operations, assets, liabilities, financial condition or prospects of the Loan Parties taken as a whole, (b) the ability of the Loan Parties taken as a whole to perform any of their obligations under any Loan Document, (c) the legality, validity or enforceability of this Agreement or any other Loan Document, (d) the rights and remedies of any Agent or any Lender under any Loan Document, or (e) the validity, perfection or priority of a Lien in favor of the Administrative Agent for the benefit of the Secured Parties on Collateral having a fair market value in excess of $5,000,000. “Material Contract” means, with respect to any Loan Party, (a) each Falcon Acquisition Document, (b) each Kilimanjaro Acquisition Document, (c) each Rocketrip Acquisition Document, (d) each Orinter Acquisition Document, (e) each Interep Acquisition Document, (f) each Consolid Mexico Acquisition Document, (g) each Skypass Acquisition Document, (h) each Specified Material Contract and the American Express Contract, (i) each contract or agreement to which such Loan Party or any of its Subsidiaries is a party (other than a contract or agreement as to which an airline or an airline Affiliate is the counterparty) involving aggregate consideration payable to or by such Loan Party or such Subsidiary of $10,000,000 or more in any Fiscal Year (other than purchase orders in the ordinary course of the business of such Loan Party or such Subsidiary and other than contracts that by their terms may be terminated by such Loan Party or Subsidiary in the ordinary course of its business upon less than 60 days' notice without penalty or premium) and (j) each other contract or agreement (other than a contract or agreement as to which an airline or an airline Affiliate is the counterparty) as to
- 46 - 146576709v1146576709v15 which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect. “Metaminds” means MetaMinds Software Solutions Limited, a corporation limited by shares organized under the laws of India. “Mexican Security Documents” means any agreements governed by the laws of Mexico, including (a) each stock pledge agreement (contrato de prenda sobre acciones) to be entered into by each shareholder of the Consolid Mexico Subsidiaries and Skypass Mexico, as pledgors, and the Administrative Agent, as pledgee, with the acknowledgement and consent of the Consolid Mexico Subsidiaries and Skypass Mexico, pursuant to which such shareholders shall grant a pledge in favor of the Administrative Agent, as may reasonably be required by the Administrative Agent (acting on advice of local counsel), and (b) each pledge, security trust, stock pledge or similar agreement, mortgage, deed of trust, assignment, or similar document as is necessary or desirable with respect to any properties or assets of any Consolid Mexico Subsidiaries or Skypass Mexico in order to create a Lien or security interest thereon for the benefit of the Secured Parties and securing the Obligations, including, without limitation, each power of attorneys granting powers for the Administrative Agent to enforce the Lien under any of the Mexican Security Documents in the situations described therein. “Mexico” means the United Mexican States (Estados Unidos Mexicanos). “Mondee” means Mondee, Inc., a Delaware corporation. “Mondee Brazil” means Mondee Brazil, LLC, a Delaware limited liability company. “Mondee Holdings II” means Mondee Holdings II, LLC, a Delaware limited liability company. “Moody's” means Moody's Investors Service, Inc. and any successor thereto. “Mortgage” means a mortgage (including, without limitation, a leasehold mortgage), deed of trust or deed to secure debt, in form and substance satisfactory to the Administrative Agent, made by a Loan Party in favor of the Administrative Agent for the benefit of the Secured Parties, securing the Obligations and delivered to the Administrative Agent. “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any of its ERISA Affiliates has contributed, or has been obligated to contribute, to at any time during the preceding the six calendar years. “Net Cash Proceeds” means, with respect to, any issuance or incurrence of any Indebtedness, any Equity Issuance, any Disposition or the receipt of any Extraordinary Receipts by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (a) in the case of any Disposition or the receipt of any Extraordinary Receipts consisting of insurance proceeds or condemnation awards,
- 47 - 146576709v1146576709v15 the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection therewith (other than Indebtedness under this Agreement), (b) reasonable expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (c) transfer taxes paid to any taxing authorities by such Person or such Subsidiary in connection therewith, and (d) net income taxes to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements), in each case, to the extent, but only to the extent, that the amounts so deducted are (i) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (ii) properly attributable to such transaction or to the asset that is the subject thereof. “New Facility” has the meaning specified therefor in Section 7.01(m). “Notice of Borrowing” has the meaning specified therefor in Section 2.02(a). “Obligations” means all present and future indebtedness, obligations, and liabilities (including, without limitation, the PIK Amount) of each Loan Party to the Agents and the Lenders arising under or in connection with this Agreement or any other Loan Document, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 9.01. Without limiting the generality of the foregoing, the Obligations of each Loan Party under the Loan Documents include (a) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal, interest (including, without limitation, the PIK Amount), charges, expenses, fees (including any Refinancing Fee or Stock Repurchase Exit Fee), premiums (including, without limitation, the Applicable Premium), attorneys' fees and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, and (b) the obligation of such Person to reimburse any amount in respect of any of the foregoing that any Agent or any Lender (in its sole discretion) may elect to pay or advance on behalf of such Person. Notwithstanding any of the foregoing, Obligations shall not include any Excluded Swap Obligations. “OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury. “Orinter” means Orinter Viagens E Turimos S.A., a corporation enrolled at CNPJ under N. 82.170.291/0001-20, with its headquarters in the City of Blumenau, State of Santa Catarina, at Alameda Rio Branco, N. 238, 1st floor, sobreloja, ZipCode 89010-300, with its bylaws filed with JUCSC under NIRE 42300053317. “Orinter Acquisition” means the acquisition by Mondee Brazil of the Orinter Acquisition Assets pursuant to the Orinter Acquisition Documents. “Orinter Acquisition Agreement” means the Share Purchase and Sale Agreement, dated as of January 31, 2023, by and between Mondee Brazil, the Parent, OTT Holdings Ltda.,
- 48 - 146576709v1146576709v15 Orinter, Ana Maria Berto, Elza Maria Pavan E Breia, Mariana Camargo Bruscato, Roberto Bermejo Sanches Junior, Robert Dos Santos, and Sergio Odinei Klock. “Orinter Acquisition Assets” means the “Shares” (as defined in the Orinter Acquisition Agreement). “Orinter Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of January 31, 2023, and in form and substance satisfactory to the Administrative Agent, made by Mondee Brazil in favor of the Administrative Agent. “Orinter Acquisition Conditions” means the following: (a) the Purchase Price for the Acquisition of the Orinter Acquisition Assets shall be comprised solely of Qualified Equity Interests of the Parent (and/or cash or Cash Equivalents constituting the proceeds of the issuance of Qualified Equity Interests of the Parent (to the extent not otherwise required to be applied to the Term Loans as Permitted Cure Equity or used to increase any basket under this Agreement)), (b) the Loans Parties shall be in compliance with clauses (a), (d), (e), (f), (h), (i) and (k) of the definition of “Permitted Acquisition”, (c) Mondee Brazil shall have executed and delivered to the Agents all agreements, instruments and other documents required by Section 7.01(b) on or prior to the date of the consummation of the Orinter Acquisition, and (d) the applicable Loan Parties and their Subsidiaries (including Orinter) shall have executed and delivered the Brazil Security Documents on or prior to the date set forth in Section 5(b) of the Amendment No. 10. “Orinter Acquisition Documents” means the Orinter Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith. “Orinter Earnout Obligations” means the Earnout Obligations contemplated to be paid pursuant to Section 4.4 of the Orinter Acquisition Agreement (as in effect on the Amendment No. 10 Effective Date), in an aggregate amount not to exceed $10,000,000 during the term of this Agreement. “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). “Other Taxes” means 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 2.12(a)). “Parent” has the meaning specified therefor in the preamble hereto.
- 49 - 146576709v1146576709v15 Agreement. Agreement. “Parent Class A Units” has the meaning specified therefor in the Parent Operating “Parent Class B Units” has the meaning specified therefor in the Parent Operating “Parent Operating Agreement” means the Amended and Restated Limited Liability Company Agreement of the Parent, dated as of May 1, 2020. “Participant Register” has the meaning specified therefor in Section 12.07(i). “Payment Office” means the Administrative Agent's office located at 865 South Figueroa Street, Suite 1800, Los Angeles, CA 90017, or at such other office or offices of the Administrative Agent as may be designated in writing from time to time by the Administrative Agent to each other Agent and to the Administrative Borrower and the Revolving Agent’s office located at 11720 Amber Park Drive, Suite 500, Alpharetta, GA 30009, or at such other office or offices of the Revolving Agent as may be designated in writing from time to time by the Revolving Agent to each other Agent and to the Administrative Borrower. “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto. “Pension Plan” means an Employee Plan that is subject to Section 412 of the Internal Revenue Code, Section 302 of ERISA or Title IV of ERISA maintained, sponsored or contributed to, or for which there is an obligation to contribute to, by any Loan Party or any of its ERISA Affiliates at any time during the preceding six calendar years. “Perfection Certificate” means a certificate in form and substance satisfactory to the Administrative Agent providing information with respect to the property of each Loan Party. “Permitted Acquisition” means (i) the Rocketrip Acquisition, (ii) the Orinter Acquisition so long as the Loan Parties comply with the Orinter Acquisition Conditions, (iii) the Interep Acquisition, (iv) the Consolid Mexico Acquisition, (v) the Skypass Acquisition and (vi) any other Acquisition (including, solely with respect to the conditions set forth in clauses (b), (c), (d), (e), (i), (j), (k) and (l) below, the Kilimanjaro Acquisition) by a Loan Party or any wholly-owned Subsidiary of a Loan Party to the extent that each of the following conditions shall have been satisfied with respect to such other Acquisition: (a) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition; (b) to the extent the Acquisition will be financed in whole or in part with the proceeds of any Loan, the conditions set forth in Section 5.02 shall have been satisfied; (c) the Borrowers shall have furnished to the Administrative Agent at least 10 Business Days prior to the consummation of such Acquisition (i) an executed term sheet and/or
- 50 - 146576709v1146576709v15 commitment letter (setting forth in reasonable detail the terms and conditions of such Acquisition) and, at the request of the Administrative Agent, such other information and
- 51 - 146576709v1146576709v15 documents that the Administrative Agent may request, including, without limitation, executed counterparts of the respective agreements, instruments or other documents pursuant to which such Acquisition is to be consummated (including, without limitation, any related management, non- compete, employment, option or other material agreements), any schedules to such agreements, instruments or other documents and all other material ancillary agreements, instruments or other documents to be executed or delivered in connection therewith, (ii) pro forma financial statements of the Parent and its Subsidiaries after the consummation of such Acquisition, (iii) a certificate of the chief financial officer of the Parent, demonstrating on a pro forma basis compliance, as at the end of the most recently ended Fiscal Quarter for which internally prepared financial statements are available, with all covenants set forth in Section 7.03 hereof after the consummation of such Acquisition, (iv)(A) if the Purchase Price with respect to such Acquisition is greater than $15,000,000 or (B) if such a report has been prepared, a quality of earnings report, prepared by a third party, with respect to the assets being acquired or the Person whose Equity Interests are being acquired, and (v) copies of such other agreements, instruments or other documents as the Administrative Agent shall reasonably request; (d) the agreements, instruments and other documents referred to in paragraph (c) above shall provide that (i) neither the Loan Parties nor any of their Subsidiaries shall, in connection with such Acquisition, assume or remain liable in respect of any Indebtedness of the Seller or Sellers, or other obligation of the Seller or Sellers (except for obligations incurred in the ordinary course of business in operating the property so acquired and necessary or desirable to the continued operation of such property and except for Permitted Indebtedness), and (ii) all property to be so acquired in connection with such Acquisition shall be free and clear of any and all Liens, except for Permitted Liens (and if any such property is subject to any Lien not permitted by this clause (ii) then concurrently with such Acquisition such Lien shall be released); (e) such Acquisition shall be effected in such a manner so that the acquired assets or Equity Interests are owned either by a Loan Party or a wholly-owned Subsidiary of a Loan Party and, if effected by merger, amalgamation or consolidation involving a Loan Party, such Loan Party shall be the continuing or surviving Person; (f) the Borrowers shall have Qualified Cash (minus the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables) in an amount equal to or greater than $7,500,000 immediately after giving effect to the consummation of the proposed Acquisition; (g) the Leverage Ratio of the Parent and its Subsidiaries (calculated using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the most recent 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which financial statements of the Parent and its Subsidiaries have been (or are required to have been) received by the Administrative Agent pursuant to Section 7.01(a) and the Indebtedness of the Parent and its Subsidiaries as of the date of such Acquisition) shall not exceed 3.50 to 1.00 after giving pro forma effect to the consummation of the proposed Acquisition and any Acquired EBITDA; provided that this clause (g) shall not apply to any Acquisition with respect to which (i) the Purchase Price therefor is comprised solely of Qualified Equity Interests of the Parent (and/or cash or Cash Equivalents constituting the proceeds of the issuance of Qualified Equity Interests of the Parent (to the extent not otherwise required to be applied to the Term Loans as Permitted
- 52 - 146576709v1146576709v15 Cure Equity or used to increase any basket under this Agreement)), (ii) any applicable put right related to such Qualified Equity Interests constitutes a Qualified Put Right and (iii) all deferred Purchase Price obligations payable in cash or Cash Equivalents (including any earnout obligation or seller debt) of the applicable Loan Parties or wholly-owned Subsidiaries of one or more Loan Parties in connection with such Acquisition only arise after the Final Maturity Date with respect to the Term Loans (such an Acquisition, a “Qualified Acquisition”); (h) either (i) the assets being acquired or the Person whose Equity Interests are being acquired did not have negative Consolidated EBITDA (as reduced by the aggregate amount of Capital Expenditures made and related to such assets or made by such Person) during the 12 consecutive month period most recently concluded prior to the date of the proposed Acquisition or (ii) in the case of any Qualified Acquisition, the foregoing Consolidated EBITDA requirement may be calculated on a historical pro forma basis in accordance with this Agreement and, for the avoidance of doubt, without duplication of any addbacks hereunder for such period (provided that all such addbacks shall be (A) reasonably identifiable and factually supportable, (B) set forth in reasonable detail in a certificate of an Authorized Officer of the Parent and (C) consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld)); (i) the assets being acquired (other than a de minimis amount of assets in relation to the Loan Parties' and their Subsidiaries' total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of the Loan Parties and their Subsidiaries or a business reasonably related thereto; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) such Acquisition shall be consensual and shall have been approved by the board of directors of the Person whose Equity Interests or assets are proposed to be acquired and shall not have been preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, Parent or any of its Subsidiaries or an Affiliate thereof; (l) any such Subsidiary (and its equityholders) shall execute and deliver the agreements, instruments and other documents required by Section 7.01(b) on or prior to the date of the consummation of such Acquisition; and (m) the Purchase Price payable in respect of (i) any single Acquisition or series of related Acquisitions shall not exceed $50,000,000 in the aggregate and (ii) all Acquisitions consummated after the Effective Date (including the proposed Acquisition but excluding, for the avoidance of doubt, the Kilimanjaro Acquisition) shall not exceed $100,000,000 in the aggregate during the term of this Agreement. “Periodic Term SOFR Determination Day” has the meaning specified therefor in the definition of “Term SOFR”.
- 53 - 146576709v1146576709v15 “Permitted Canadian Finance Facilities” means Indebtedness incurred by the Canadian Subsidiary and/or Canadian A/R Transactions entered into by the Canadian Subsidiary in an aggregate principal amount not to exceed $2,000,000 at any time outstanding. “Permitted Cure Equity” means Qualified Equity Interests of the Parent. “Permitted Disposition” means: (a) sale of Inventory in the ordinary course of business; (b) licensing, on a non-exclusive basis, Intellectual Property rights in the ordinary course of business; (c) leasing or subleasing assets in the ordinary course of business; (d) (i) the lapse of Registered Intellectual Property of the Parent and its Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties; (e) any involuntary loss, damage or destruction of property; (f) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property; (g) so long as no Event of Default has occurred and is continuing or would result therefrom, transfers of assets (i) from the Parent or any of its Subsidiaries (other than the Borrowers) to a Loan Party (other than the Parent), and (ii) from any Subsidiary of the Parent that is not a Loan Party to any other Subsidiary of the Parent; (h) Disposition by the Canadian Subsidiary of Canadian A/R Related Property to a financing partner or Special Purpose Subsidiary in connection with the Permitted Canadian Finance Facilities, so long as (after the Control Agreement Deadline) the Net Cash Proceeds of such Disposition are deposited by the Canadian Subsidiary into an account subject to a Control Agreement; business; (i) Disposition of obsolete or worn-out equipment in the ordinary course of (j) Disposition of property or assets not otherwise permitted in clauses (a) through (h) above for cash in an aggregate amount not less than the fair market value of such property or assets; (k) Disposition of the Equity Interests of the Falcon Subsidiaries and Star Advantage Limited t/a Alta World Tour to the Falcon Seller for non-cash consideration pursuant
- 54 - 146576709v1146576709v15 to agreements in form and substance satisfactory to the Administrative Agent (the “Falcon Disposition”); provided that the Net Cash Proceeds of such Dispositions (including the proposed Disposition) (1) in the case of clauses (i) and (j) above, do not exceed $1,500,000 in the aggregate in any Fiscal Year and (2) in all cases, are paid to the Administrative Agent for the benefit of the Secured Parties to the extent required by the terms of Section 2.05(c)(ii) or applied to the extent required by the terms of Section 2.05(c)(vi). “Permitted Holder” means Prasad Gundumogula or any Controlled Investment Affiliate thereof. “Permitted Indebtedness” means: (a) any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents; (b) any other Indebtedness listed on Schedule 7.02(b), and any Permitted Refinancing Indebtedness in respect of such Indebtedness; (c) Permitted Purchase Money Indebtedness and any Permitted Refinancing Indebtedness in respect of such Indebtedness; (d) Permitted Intercompany Investments; (e) Indebtedness incurred in the ordinary course of business under surety, statutory, and appeal bonds, performance bonds (including those for the benefit of airlines or industry regulatory bodies or clearing houses) or in connection with workers compensation claims; (f) Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Loan Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during such period; (g) the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party's operations and not for speculative purposes; (h) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”), merchant cards, virtual cards (including the Bank of America Shuffler Program) or other similar cash management services, in each case, incurred in the ordinary course of business;
- 55 - 146576709v1146576709v15 (i) contingent liabilities in respect of any indemnification obligation, non- compete, or similar obligation of any Loan Party incurred in connection with the consummation of one or more Permitted Acquisitions; (j) Indebtedness incurred in the ordinary course of business with respect to letters of credit issued by other banks on a cash-collateralized or unsecured basis, in each case, for the benefit of airlines or industry regulatory bodies or clearing houses; (k) the Falcon Earnout Obligations; (l) Indebtedness of a Person whose assets or Equity Interests are acquired by the Parent or any of its Subsidiaries in a Permitted Acquisition in an aggregate amount not to exceed $2,500,000 at any time outstanding; provided, that such Indebtedness (i) is either Permitted Purchase Money Indebtedness or a Capitalized Lease with respect to equipment or mortgage financing with respect to a Facility, (ii) was in existence prior to the date of such Permitted Acquisition, and (iii) was not incurred in connection with, or in contemplation of, such Permitted Acquisition; (m) Indebtedness under the Permitted Canadian Finance Facilities; (n) Subordinated Indebtedness other than, for the avoidance of doubt, items in clause (k) above and clause (o) below (but including any other Earnout Obligations and Subordinated Indebtedness, in each case, incurred in connection with the consummation of one or more Permitted Acquisitions) in an aggregate principal amount for all such Subordinated Indebtedness not to exceed $5,000,000 at any time outstanding; (o) (i) [reserved], (ii) any Qualified Put Rights and (iii) any Subordinated Indebtedness that is incurred solely to satisfy the obligations of the Loan Parties in respect of such Qualified Put Rights in an aggregate principal amount for all such Subordinated Indebtedness not to exceed the aggregate amount of the obligations of the Loan Parties arising in respect of such Qualified Put Rights upon the exercise thereof; (p) the Orinter Earnout Obligations; (q) [reserved]; (q) (i) after the L/C Facility Closing Date (if any), Indebtedness in respect of the letters of credit issued by the L/C Issuer under the L/C Facility and (ii) other letters of credit on terms and conditions satisfactory to the Agents and the Lenders, arranged by the Loan Parties, for the issuance by issuers acceptable to the Agents and the Lenders of letters of credit in an aggregate face amount under this clause (ii) not to exceed $10,000,000; provided that the Loan Parties shall first offer the L/C Issuer the opportunity to arrange the issuance of such other letters of credit prior to arranging such letters of credit through other issuers; (r) Indebtedness constituting Excess Payables;
- 56 - 146576709v1146576709v15 (s) from the Amendment No. 3 Effective Date until the SVB LC Expiration Date, Indebtedness under the SVB LC Agreement in an aggregate amount not to exceed $240,000 at any time outstanding; (t) from the Amendment No. 3 Effective Date until the SVB LC Expiration Date, Indebtedness under the SBV Mondee Guaranty, in an aggregate amount not to exceed $240,000 at any time outstanding; (u) Indebtedness constituting CARES Act Indebtedness, CEBA Indebtedness or HASCAP Indebtedness; in an aggregate principal amount for all such Indebtedness under this clause (u) not to exceed $10,500,000 at any time outstanding; and (v) to the extent constituting Indebtedness, the Consolid Mexico Earnout Obligations, the Interep Earnout Obligations, the Consolid Mexico Put Right and the Skypass Earnout Obligations. “Permitted Intercompany Investments” means Investments made by (a) a Loan Party to or in another Loan Party (other than the Parent), (b) a Subsidiary that is not a Loan Party to or in another Subsidiary that is not a Loan Party, (c) a Subsidiary that is not a Loan Party to or in a Loan Party, so long as, in the case of a loan or advance, the parties thereto are party to the Intercompany Subordination Agreement, (d) transactions permitted under Section 7.02(j)(v), to the extent such transactions are characterized as Investments by a Loan Party to or in a Foreign Subsidiary, and (e) a Loan Party to or in a Subsidiary (including, without limitation, a Foreign Subsidiary) that is not a Loan Party, so long as (i) the aggregate amount of all such Investments made by the Loan Parties to or in Subsidiaries that are not Loan Parties does not exceed $1,500,000 at any time outstanding, (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to such Investment, and (iii) the Borrowers shall have Qualified Cash (minus the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables) in an amount equal to or greater than $7,500,000 immediately after giving effect to such Investment. “Permitted Investments” means: (a) Investments in cash and Cash Equivalents; (b) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business; (c) advances made in connection with purchases of goods or services in the ordinary course of business; (d) Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;
- 57 - 146576709v1146576709v15 (e) Investments existing on the date hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof; (f) Permitted Intercompany Investments; (g) Permitted Acquisitions; (h) [reserved]; (i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any other Investments in an aggregate amount not to exceed $2,500,000 at any time outstanding; (j) so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrowers shall have Qualified Cash (minus the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables) in an amount equal to or greater than $7,500,000 both before and after giving effect thereto, and (iii) the Leverage Ratio of the Parent and its Subsidiaries (calculated using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the most recent 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which financial statements of the Parent and its Subsidiaries have been (or are required to have been) received by the Administrative Agent pursuant to Section 7.01(a) and the Indebtedness of the Parent and its Subsidiaries on the date thereto) shall not exceed 3.00 to 1.00 after giving pro forma effect to the consummation thereof, any other Investments constituting Acquisitions; and (k) Investments for nominal consideration related to the formation and establishment of (but, for the avoidance of doubt, not any further Investment in) a Special Purpose Subsidiary. “Permitted Liens” means: (a) Liens securing the Obligations; (b) Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c)(ii); (c) Liens imposed by law, such as carriers', warehousemen's, mechanics', materialmen's and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 30 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;
- 58 - 146576709v1146576709v15 (d) Liens described on Schedule 7.02(a), provided that any such Lien shall only secure the Indebtedness that it secures on the Effective Date and any Permitted Refinancing Indebtedness in respect thereof; (e) purchase money Liens on equipment acquired or held by any Loan Party or any of its Subsidiaries in the ordinary course of its business to secure Permitted Purchase Money Indebtedness so long as such Lien only (i) attaches to such property and (ii) secures the Indebtedness that was incurred to acquire such property or any Permitted Refinancing Indebtedness in respect thereof; (f) deposits and pledges of cash securing (i) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due; (g) with respect to any Facility, easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person's business; (h) Liens of landlords and mortgagees of landlords (i) arising by statute or under any Lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, or (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; (i) the title and interest of a lessor or sublessor in and to personal property leased or subleased (other than through a Capitalized Lease), in each case extending only to such personal property; (j) non-exclusive licenses of Intellectual Property rights in the ordinary course of business; (k) judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.01(k); (l) rights of set-off or bankers' liens upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business; (m) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;
- 59 - 146576709v1146576709v15 (n) Liens assumed by the Parent and its Subsidiaries in connection with a Permitted Acquisition that secure Indebtedness permitted by clause (l) of the definition of Permitted Indebtedness; (o) Liens solely on any cash earnest money deposits made by any Loan Party in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition; (p) [reserved]; (q) Liens solely on the assets of the Canadian Subsidiary or any Canadian A/R Related Property securing the Permitted Canadian Finance Facilities; (r) deposits and pledges of cash securing Indebtedness permitted by clause (j) and clause (q) of the definition of Permitted Indebtedness; andprovided that any cash securing Indebtedness under clause (q) of the definition of Permitted Indebtedness shall be solely and directly the proceeds of a substantially contemporaneous incurrence by the Borrowers of an additional Term Loan B; and (s) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $1,000,000. “Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations) incurred to finance the acquisition of any fixed assets secured by a Lien permitted under clause (e) of the definition of “Permitted Liens”; provided that (a) such Indebtedness is incurred within 20 days after such acquisition, (b) such Indebtedness when incurred shall not exceed the purchase price of the asset financed and (c) the aggregate principal amount of all such Indebtedness shall not exceed $2,500,000 at any time outstanding. “Permitted Refinancing Indebtedness” means the extension of maturity, refinancing or modification of the terms of Indebtedness so long as: (a) after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification (other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto); (b) such extension, refinancing or modification does not result in a shortening of the average weighted maturity (measured as of the extension, refinancing or modification) of the Indebtedness so extended, refinanced or modified; (c) such extension, refinancing or modification is pursuant to terms that are not less favorable to the Loan Parties and the Lenders than the terms of the Indebtedness
- 60 - 146576709v1146576709v15 (including, without limitation, terms relating to the collateral (if any) and subordination (if any)) being extended, refinanced or modified; and (d) the Indebtedness that is extended, refinanced or modified is not recourse to any Loan Party or any of its Subsidiaries that is liable on account of the obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended. “Permitted Restricted Payments” means any of the following Restricted Payments made by: (a) any Loan Party directly or indirectly to the Parent in amounts necessary to pay taxes and other customary expenses as and when due and owing by the Parent in the ordinary course of its business as a holding company (including salaries and related reasonable and customary expenses incurred by employees of the Parent), so long as no Default or Event of Default shall have occurred and be continuing or would result from the making of such payment; (b) [reserved]; (c) any Loan Party to another Loan Party to the extent necessary (i) to pay Taxes with respect to the income of such first-mentioned Loan Party and/or its Subsidiaries pursuant to any consolidated, combined or unitary tax return on which such first-mentioned Loan Party is included but for which such first-mentioned Loan Party is not the common parent and (ii) to pay Taxes imposed on such second-mentioned Loan Party under the anti-deferral provisions of the Code; (d) any Subsidiary of any Borrower to such Borrower; (e) the Parent to pay non-cash (payment-in-kind) dividends in the form of common Equity Interests; (f) the Parent to make the payments to consummate the Repurchase of Warrants (as defined in Amendment No. 8), so long as on or prior to the date that is the later of (a) January 20, 2023 and (b) one (1) Business Day after the consummation of the sale and issuance of 25,000 additional shares of Series A Preferred Stock in the aggregate as part of the Additional Series A Preferred Stock Issuance (as defined in Amendment No. 8), the Parent, or one or more of its designees, has repurchased from the Lenders, on a pro rata basis, party hereto (each, a “Unitholder”) not less than 50,000 of the shares of Class A common stock of the Parent at $10/per share (or if Mondee Holdings, LLC, a Delaware limited liability company (“Mondee Holdings”) has not yet distributed, transferred, assigned and delivered to each Unitholder the shares of Class A common stock of the Parent, pursuant to executed Redemption Agreements, entered into by and between Mondee Holdings and each Unitholder, each in form and substance satisfactory to the Unitholders, then the Parent, or one or more of its designees has repurchased from the Unitholders, on a pro rata basis, not less than 153,846.16 of the Class G Units of Mondee Holdings issued on July 18, 2022 at $3.25/per share); provided, that the aggregate
- 61 - 146576709v1146576709v15 amount of such Permitted Restricted Payments pursuant to this clause (f) shall not exceed $8,058,365.25; (g) the Parent to pay the Orinter Earnout Obligations to be paid pursuant to the terms of the Orinter Acquisition Documents (as in effect on the Amendment No. 10 Effective Date), so long as (i) such payment in respect of the Orinter Earnout Obligations is made solely in the form of Qualified Equity Interests of the Parent (and/or cash of Cash Equivalents constituting the proceeds of the issuance of Qualified Equity Interests of the Parent (to the extent not otherwise required to be applied to the Term Loans as Permitted Cure Equity or used to increase any basket under this Agreement)), (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to the payment of such Orinter Earnout Obligations, (iii) the Borrowers shall have Qualified Cash (minus the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables) in an amount equal to or greater than $7,500,000 immediately before and after giving effect to the payment of such Orinter Earnout Obligations, (iv) the Leverage Ratio of the Parent and its Subsidiaries (calculated using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the most recent 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which financial statements of the Parent and its Subsidiaries have been (or are required to have been) received by the Administrative Agent pursuant to Section 7.01(a) and the Indebtedness of the Parent and its Subsidiaries on the date thereto) shall not exceed 3.50 to 1.00 after giving pro forma effect to the payment of such Orinter Earnout Obligations and (v) the Administrative Agent shall have received a certificate of the chief financial officer of the Parent certifying as to the matters set forth in this clause (g), together with reasonably detailed calculations demonstrating compliance with subclauses (i), (iii), and (iv) of this clause (g), in form and substance satisfactory to the Administrative Agent; (h) the Parent to pay (i) the Consolid Mexico Earnout Obligations due and payable pursuant to the terms of the Consolid Acquisition Agreement, (ii) the Interep Earnout Obligations due and payable pursuant to the terms of the Interep Acquisition Agreement and (iii) the Skypass Earnout Obligations due and payable pursuant to the terms of the Skypass Acquisition Agreement; and (i) the Parent to make payments to consummate the repurchase of the outstanding common stock of the Parent in cash (the “Stock Repurchase”) on or before October 31, 2023 in an amount not to exceed $5,000,000. “Permitted Specified Liens” means Permitted Liens described in clauses (a), (b) and (c) of the definition of Permitted Liens, and, solely in the case of Section 7.01(b)(i), including clauses (g), (h), (i) and (p) of the definition of Permitted Liens. “Person” means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.
- 62 - 146576709v1146576709v15 “Petty Cash Accounts” means Cash Management Accounts with deposits at any time in an aggregate amount not in excess of $10,000 for any one account and $50,000 in the aggregate for all such accounts. “PIK Amount” means, as of any date of determination, the amount of all interest accrued with respect to the Loans that has been paid in kind by being added to the balance thereof in accordance with Section 2.04(b). “Post-Default Rate” means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant to the terms of this Agreement plus 2.00%, or, if a rate of interest is not otherwise in effect, interest at the highest rate specified herein for any Loan then outstanding prior to an Event of Default plus 2.00%. “PPSA” means the Personal Property Security Act (Ontario), the Civil Code of Quebec or any other applicable Canadian federal or provincial statute pertaining to the granting, perfection, priority or ranking of security interests, liens or hypothecs on personal property, and any successor statutes, together with any regulations thereunder, in each case, as in effect from time to time. References to sections of the PPSA shall be construed to also refer to any successor statutes. “Preferred COD” has the meaning set forth in the definition of “Series A Preferred Stock”. “Pro Rata Share” means, with respect to: (a) a Lender's obligation to make Revolving Loans and the right to receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (i) such Lender's Revolving Credit Commitment, by (ii) the Total Revolving Credit Commitment, provided that, if the Total Revolving Credit Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender's Revolving Loans (including Agent Advances) and the denominator shall be the aggregate unpaid principal amount of all Revolving Loans (including Agent Advances), (b) (i) with respect to a Lender’s obligation to make the Term Loan A and the right to receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (A) such Lender’s Term Loan A Commitment, by (B) the Total Term Loan A Commitment, provided that if the Total Term Loan A Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s portion of the Term Loan A and the denominator shall be the aggregate unpaid principal amount of the Term Loan A, and (ii) with respect to a Lender’s obligation to make the Term Loan B and the right to receive payments of interest, fees, and principal with respect thereto, the percentage obtained by dividing (A) such Lender’s Term Loan B Commitment, by (B) the Total Term Loan B Commitment, provided that if the Total Term Loan B Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s portion of the Term Loan B and the denominator shall be the aggregate unpaid principal amount of the Term Loan B, and
- 63 - 146576709v1146576709v15 (c) all other matters (including, without limitation, the indemnification obligations arising under Section 10.05), the percentage obtained by dividing (i) the sum of such (A) Lender's Revolving Credit Commitment, (B) such Lender's Term Loan Commitment and (C) the unpaid principal amount of such Lender's portion of the Term Loans, by (ii) the sum of (a) the Total Revolving Credit Commitment, (B) the Total Term Loan Commitment and (C) the aggregate unpaid principal amount of the Term Loans, provided, that, if such Lender's Revolving Credit Commitment shall have been reduced to zero, such Lender's Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of such Lender's Revolving Loans (including Agent Advances) and if the Total Revolving Credit Commitment shall have been reduced to zero, the Total Revolving Credit Commitment shall be deemed to be the aggregate unpaid principal amount of all Revolving Loans (including Agent Advances). “Projections” means financial projections of the Parent and its Subsidiaries delivered pursuant to Section 6.01(g)(ii), as updated from time to time pursuant to Section 7.01(a)(vii). “Purchase Price” means, with respect to any Acquisition, an amount equal to the sum of (a) the aggregate consideration, whether cash, property or securities (including, without limitation, the fair market value of any Equity Interests of any Loan Party or any of its Subsidiaries issued in connection with such Acquisition), paid or delivered by a Loan Party or any of its Subsidiaries (whether as initial consideration or through the payment or disposition of deferred consideration, including, without limitation, in the form of Earnout Obligations, seller financing, royalty payments, payments allocated towards non-compete covenants, payments to principals for consulting services or other similar payments) in connection with such Acquisition, plus (b) the aggregate amount of liabilities of the acquired business (net of current assets of the acquired business) that would be reflected on a balance sheet (if such were to be prepared) of the Parent and its Subsidiaries after giving effect to such Acquisition, plus (c) the aggregate amount of all transaction fees, costs and expenses incurred by the Parent or any of its Subsidiaries in connection with such Acquisition. “Qualified Cash” means, as of any date of determination, the aggregate amount of unrestricted cash on-hand of the Loan Parties maintained in deposit accounts in the name of a Loan Party in the United States as of such date, and if such date is after the Control Agreement Deadline, such deposit accounts are subject to Control Agreements. “Qualified Equity Interests” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity Interests. “Qualified Put Right” means any put right related to Qualified Equity Interests of the Parent with respect to which the closing of such put right, and all related payment obligations of the issuer thereof to the Person exercising such put right, may only occur or otherwise be payable after the Final Maturity Date with respect to the Term Loans. “Real Property Deliverables” means each of the following agreements, instruments and other documents in respect of each Facility, each in form and substance reasonably satisfactory to the Administrative Agent:
- 64 - 146576709v1146576709v15 (a) a Mortgage duly executed by the applicable Loan Party, (b) evidence of the recording of each Mortgage in such office or offices as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Secured Parties thereunder; (c) a Title Insurance Policy with respect to each Mortgage; (d) a current ALTA survey (or local equivalent) and a surveyor's certificate, certified to the Administrative Agent and to the issuer of the Title Insurance Policy with respect thereto by a professional surveyor licensed in the state, province or territory in which such Facility is located and reasonably satisfactory to the Administrative Agent; (e) in the case of a leasehold interest, (i) a certified copy of the Lease between the landlord and such Person with respect to such real property in which such Person has a leasehold interest, and the certificate of occupancy with respect thereto, and (ii) an attornment and nondisturbance agreement between the landlord (and any fee mortgagee) and the applicable Loan Party with respect to such leasehold interest and the Administrative Agent; (f) a zoning report issued by a provider reasonably satisfactory to the Administrative Agent or a copy of each letter issued by the applicable Governmental Authority, evidencing each Facility's compliance with all applicable Requirements of Law, together with a copy of all certificates of occupancy issued with respect to each Facility; (g) an opinion of counsel, satisfactory to the Administrative Agent, in the state, province, territory or other equivalent jurisdiction where such Facility is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Administrative Agent may reasonably request; (h) an ASTM 1527-13 Phase I Environmental Site Assessment (“Phase I ESA”) (and if reasonably requested by the Administrative Agent based upon the results of such Phase I, a Phase II Environmental Site Assessment), by an independent firm reasonably satisfactory to the Administrative Agent; and (i) such other agreements, instruments, appraisals and other documents (including guarantees and opinions of counsel) as the Administrative Agent may reasonably require. 2.01(a)(ii). 2.01(a)(ii). “Recipient” means any Agent and any Lender, as applicable. “Redesignated Term Loan A” has the meaning specified therefor in Section “Redesignated Term Loan B” has the meaning specified therefor in Section
- 65 - 146576709v1146576709v15 “Redesignated Term Loans” means collectively, the Redesignated Term Loan A and the Redesignated Term Loan B. “Reference Rate” means, for any period, the greatest of (a) 2.75% per annum, (b) the Federal Funds Rate plus 0.50% per annum, (c) Adjusted Term SOFR for a one-month tenor in effect two (2) U.S. Government Securities Business Days prior to the date of such determination plus 1.00% per annum, and (d) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective. “Reference Rate Loan” means each portion of a Loan that bears interest at a rate determined by reference to the Reference Rate. “Reference Rate Term SOFR Determination Day” has the meaning specified therefor in the definition of “Term SOFR”. “Refinancing” shall mean the incurrence by the Loan Parties of Indebtedness from, or the issuance by the Loan Parties of Equity Interests to, any Person (pursuant to a bona fide letter of intent, proposal or binding commitment, as the case may be, made in good faith and with the intent that, subject to the terms thereof, such letter of intent, proposal or binding commitment will result in the consummation of such transaction by such Person), the Net Cash Proceeds of which are in an amount sufficient to repay in full in cash all Obligations. “Refinancing Fee” shall have the meaning set forth in Section 2.06(f) hereof. “Refinancing Milestone Event” means the occurrence of any of the following events: (a) the Loan Parties shall have failed to retain a financial advisor or debt placement agent satisfactory tothe Financial Advisor within fifteen (15) Business Days after written request by the Administrative Agent for the commencement of a refinancing process with respect to a Refinancing on or before October 31, 2023;in accordance with Section 7.01(s)(i)(A) hereof; or (b) the Loan Parties shall have failed to retain an investment banker within fifteen (15) Business Days after written request by the Administrative Agent in accordance with Section 7.01(s)(ii) hereof. (b) the Loan Parties shall have failed to deliver to the Agents a confidential information memorandum prepared by (or with the assistance of) such financial advisor or debt placement agent with respect to such Refinancing on or before November 30, 2023;
- 66 - 146576709v1146576709v15 (c) the Loan Parties shall have failed to deliver to the Agents one or more indications of interest or term sheets with respect to such Refinancing on or before December 31, 2023; (d) the Loan Parties shall have failed to deliver to the Agents a binding proposal letter or commitment letter (or definitive legal documentation) with respect to such Refinancing on or before February 15, 2024 (or such binding proposal letter or commitment letter (or definitive legal documentation) shall at any time after the timely delivery thereof be terminated or no longer in full force and effect (other than upon the consummation of such Refinancing)); (e) [reserved]; or (f) the Loan Parties shall have failed to consummate such Refinancing on or before April 30, 2024. “Register” has the meaning specified therefor in Section 12.07(f). “Registered Intellectual Property” means Intellectual Property that is issued, registered, renewed or the subject of a pending application. “Regulation T”, “Regulation U” and “Regulation X” mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time. “Related Fund” means, with respect to any Person, an Affiliate of such Person, or a fund or account managed by such Person or an Affiliate of such Person. “Related Parties” means, with respect to any Person, such Person’s Affiliates and the direct and indirect equityholders, partners, directors, officers, employees, agents, consultants, trustees, administrators, managers, advisors, and representatives of such Person and of such Person’s Affiliates. “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property. “Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto. “Remedial Action” means any action (a) to correct or address any actual, alleged or threatened non-compliance with any Environmental Law or Environmental Permit, or (b) to clean up, remove, remediate, contain, treat, monitor, assess, evaluate, investigate, prevent, minimize or in any other way address any environmental condition or the presence, Release or
- 67 - 146576709v1146576709v15 threatened Release of any Hazardous Material (including the performance of pre-remedial studies and investigations and post-remedial operation and maintenance activities). “Replacement Lender” has the meaning specified therefor in Section 12.02(c) “Reportable Event” means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30-day notice to the PBGC under the regulations promulgated under such Section). “Required Lenders” means Lenders whose Pro Rata Shares (calculated in accordance with clause (c) of the definition thereof) aggregate at least 50.1%. “Required Revolving Loan Lenders” means Revolving Loan Lenders whose Pro Rata Shares (calculated in accordance with clause (a) of the definition thereof) aggregate at least 50.1%. “Required Term Loan Lenders” means Term Loan Lenders whose Pro Rata Shares (calculated in accordance with clause (b) of the definition thereof) aggregate at least 50.1%. “Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, provincial, territorial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, orders-in-council, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. “Restricted Payment” means (a) the declaration or payment of any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, together with any payment or distribution pursuant to a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, (b) the making of any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Loan Party or any direct or indirect parent of any Loan Party, now or hereafter outstanding, (c) the making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of any Loan Party, now or hereafter outstanding, (d) the return of any Equity Interests to any shareholders or other equity holders of any Loan Party or any of its Subsidiaries, or make any other distribution of property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto as such or (e) the payment of any management, consulting, monitoring or advisory fees or any other fees or expenses (including the reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to any management, consulting, monitoring, advisory or other services agreement to any of the
- 68 - 146576709v1146576709v15 shareholders or other equityholders of any Loan Party or any of its Subsidiaries or other Affiliates, or to any other Subsidiaries or Affiliates of any Loan Party. “Revolving Agent” has the meaning specified therefor in the preamble hereto. “Revolving Agent’s Account” means an account at a bank designated by the Revolving Agent from time to time as the account into which the Loan Parties shall make certain payments to the Revolving Agent for the benefit of the Revolving Loan Lenders under this Agreement and the other Loan Documents. “Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrowers in the amount set forth opposite such Lender's name in Schedule 1.01(A)(iv) hereto or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amount may be terminated or reduced from time to time in accordance with the terms of this Agreement, provided that from and after the Amendment No. 11 Effective Date, such commitment shall be discretionary as more fully described in Section 7 of Amendment No. 11. “Revolving Credit Commitment Termination Date” means the earlier to occur of (a) the date the Revolving Credit Commitments are permanently reduced to zero pursuant to Section 2.01(b) and (b) the date of the termination of the Revolving Credit Commitments pursuant to Section 9.01. “Revolving Loan” means a loan made by a Lender to the Borrowers pursuant to Section 2.01(a)(i). “Revolving Loan Lender” means a Lender with a Revolving Credit Commitment or a Revolving Loan. “Revolving Loan Obligations” means any Obligations with respect to the Revolving Loans (including without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto). “Rocketrip Acquisition” means the acquisition by Mondee of the Rocketrip Acquisition Assets pursuant to the Rocketrip Acquisition Documents. “Rocketrip Acquisition Agreement” means the Agreement and Plan of Merger, dated as of September 3, 2020, by and between Mondee, Mondee Merger Sub, Inc., Rocketrip, Inc., the Parent and Fortis Advisors. “Rocketrip Acquisition Assets” means the “Shares” (as defined in the Rocketrip Acquisition Agreement). “Rocketrip Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, dated as of September 3, 2020, and in form and substance satisfactory to the Administrative Agent, made by Mondee in favor of the Administrative Agent.
- 69 - 146576709v1146576709v15 “Rocketrip Acquisition Documents” means the Rocketrip Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith. “Sabre Contract” means that certain Customer Agreement, dated as of November 1, 2015, by and among Sabre GLBL Inc. and Mondee. “Sale and Leaseback Transaction” means, with respect to the Parent or any of its Subsidiaries, any arrangement, directly or indirectly, with any Person whereby the Parent or any of its Subsidiaries shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred. “Sanctioned Country” means, at any time, a country or territory that is itself the subject or target of comprehensive Sanctions (which, as of the Effective Date, include Crimea, Cuba, Iran, North Korea, and Syria). “Sanctioned Person” means, at any time, any Person (a) listed in OFAC's Specially Designated Nationals and Blocked Persons List, OFAC's Sectoral Sanctions Identification List, and any other Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty's Treasury of the United Kingdom, Canada, or other relevant sanctions authority that require blocking, asset freezes, rejection, prohibition or other similar actions with respect to designated Persons, (b) a Person that resides, is organized or located in or has a place of business in a Sanctioned Country or a country or territory that is subject to a call for counter-measures or designated a “Non-Cooperative Country or Territory” by the Financial Action Task Force on Money Laundering, or whose funds are transferred from or through such a jurisdiction (a “Sanction Target”), (c) any Person with whom or with which a U.S. Person is prohibited from dealing under any of the Sanctions, or (d) any Person owned 50% or more, directly or indirectly, individually or in the aggregate by, or controlled by, any Person or Persons described in clauses (a) or (b). “Sanctions” means Requirements of Law concerning or relating to economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by OFAC, the U.S. Department of State, the government of Canada, the European Union, or Her Majesty's Treasury of the United Kingdom, or other relevant sanctions authority. “SBA” means the U.S. Small Business Administration. “SEC” means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act. “Secured Party” means any Agent and any Lender, and “Secured Parties” means the Agents and the Lenders.
- 70 - 146576709v1146576709v15 “Securities Act” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time. “Securitization” has the meaning specified therefor in Section 12.07(l). “Security Agreement” means a Pledge and Security Agreement (including the Canadian Security Agreement), in form and substance satisfactory to the Administrative Agent, made by a Loan Party in favor of the Administrative Agent for the benefit of the Secured Parties securing the Obligations. “Seller” means any Person that sells Equity Interests or other property or assets to a Loan Party or a Subsidiary of a Loan Party in a Permitted Acquisition. “Series A Preferred Stock” means the Series A Preferred Stock of the Parent created and issued pursuant to that certain Third Amended and Restated Certificate of Designation of Preferences, Right and Limitations of Series A-1, Series A-2 and Series A-3 Preferred dated as of August 14, 2024 (such certificate, the “Preferred COD”). “Settlement Period” has the meaning specified therefor in Section 2.02(d)(i). “Skypass Acquisition” means the acquisition by Mondee, Mondee Acquisition Company, Inc., and the Parent of the Skypass Acquisition Assets pursuant to the Skypass Acquisition Documents. “Skypass Acquisition Agreement” means the Stock Purchase Agreement, dated as of August 12, 2023, by and among Mondee, Mondee Acquisition Company, Inc., the Parent, Skypass India, Victor Abraham and Sherly Abraham. “Skypass Acquisition Assets” means the “Shares” (as defined in the Skypass Acquisition Agreement). “Skypass Acquisition Collateral Assignment” means the Collateral Assignment of Acquisition Documents, in form and substance satisfactory to the Administrative Agent, made by Mondee, Mondee Acquisition Company, Inc., and the Parent in favor of the Administrative Agent. “Skypass Acquisition Documents” means the Skypass Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith. “Skypass Earnout Obligations” means, collectively, the issuance of the Deferred Rollover Shares (as defined in the Skypass Acquisition Agreement) and the Earnout Rollover Shares (as defined in the Skypass Acquisition Agreement) contemplated to be issued pursuant to Section 2.2(a)(v) and Section 2.2(a)(vi) of the Skypass Acquisition Agreement (as in effect on the Amendment No. 11 Effective Date) in an aggregate amount not to exceed 19.99% of the Parent’s Common Stock during the term of this Agreement.
- 71 - 146576709v1146576709v15 “Skypass Subsidiaries” means, collectively, (a) Skypass Travel Inc., a Texas corporation (“Skypass Travel”), (b) Skypass Travel de México S.A. de C.V., a sociedad anónima de capital variable (“Skypass Mexico”), (c) Skypass Holidays LLC, a Texas limited liability company (“Skypass Holidays”), (d) Skypass Travel Private Limited, a private limited company incorporated under the laws of India (“Skypass India”) and (e) Skypass Turismo LTDA, a company organized under the laws of Brazil (“Skypass LTDA”). “Small Business Act” means the Small Business Act (15 U.S. Code Chapter 14A – Aid to Small Business). “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “SOFR Borrowing” means, as to any borrowing, the SOFR Loans comprising such Loans. “SOFR Deadline” has the meaning specified therefor in Section 2.07(a). “SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Reference Rate”. “SOFR Notice” means a written notice substantially in the form of Exhibit D. “SOFR Option” has the meaning specified therefor in Section 2.07(a). “Solvent” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is not less than the total amount of the liabilities of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its existing debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute unreasonably small capital. “SPAC Effective Date” has the meaning specified therefor in the definition of “Applicable Premium”. “SPAC Prepayment Amount” has the meaning specified therefor in Section 5 of Amendment No. 7.
- 72 - 146576709v1146576709v15 “SPAC Prepayment Notice” has the meaning specified therefor in Section 2.05(b)(ii). “SPAC Restructuring” means the transactions set forth in that certain Business Combination Agreement, dated as of December 20, 2021 (the “Business Combination Agreement”), pursuant to which Mondee Holdings II, Inc., a Delaware corporation shall effectuate certain restructuring transactions with the ITHAX Acquisition Corp., an exempted company incorporated in the Cayman Islands with limited liability (“Ithax”), Ithax Sub I, LLC, a Delaware limited liability company and wholly owned subsidiary of Ithax (“Merger Sub I”), and Ithax Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Ithax (“Merger Sub II”), as follows: (a) Ithax shall domesticate as a Delaware corporation, as more fully described in the Business Combination Agreement (the “Domestication”, and Ithax after the Domestication shall be hereinafter referred to as “New Mondee”), (b) Merger Sub I will merge with and into Holdings II, with Holdings II surviving such merger as a wholly owned subsidiary of New Mondee (the “First Merger”), (c) immediately following the First Merger, Holdings II shall merge with and into Merger Sub II, with Merger Sub II surviving such merger as a wholly owned subsidiary of New Mondee (the “Second Merger”, and together with the First Merger, the “Mergers”), (d) New Mondee will change its name to “Mondee Holdings, Inc.”, a Delaware corporation (“New Parent”), (e) Merger Sub II will change its name to “Mondee Holdings II, LLC”, a Delaware limited liability company (“New Mondee Holdings II”), and (f) Mondee Holdings, LLC will distribute the shares of “Mondee Holdings, Inc.” received in connection with the consummation of the Business Combination Agreement to its members in accordance with the procedures adopted by the Board of Managers of Mondee Holdings, LLC and, following the full distribution of such shares of “Mondee Holdings, Inc.”, dissolve, so that after giving effect thereto, (i) New Parent owns 100% of New Mondee Holdings II and (ii) New Mondee Holdings II owns 100% of Mondee, Inc.. “Special Purpose Subsidiary” means any Subsidiary or Affiliate of the Canadian Subsidiary formed for the purpose of and that solely engages in one or more Canadian A/R Transactions. “Specified Material Contracts” means, collectively, the Amadeus Contract, the Sabre Contract and the TravelPort Contract. “Standard & Poor's” means Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, Inc. and any successor thereto. “Stock Repurchase” has the meaning set forth in clause (i) of the definition of “Permitted Restricted Payment” hereof. “Stock Repurchase Exit Fee” has the meaning set forth in Section 2.06(g) hereof. “Stock Repurchase Investment” has the meaning set forth in Section 7.01(t) hereof. “Stock Repurchase Investment Date” means October 23, 2023.
- 73 - 146576709v1146576709v15 “Subordinated Indebtedness” means Indebtedness (including Earnout Obligations) of any Loan Party the terms of which (including, without limitation, payment terms, interest rates, covenants, remedies, defaults and other material terms) are satisfactory to the Administrative Agent and the Required Lenders and which has been expressly subordinated in right of payment to all Indebtedness of such Loan Party under the Loan Documents (a) by the execution and delivery of a subordination agreement, in form and substance satisfactory to the Required Lenders, or (b) otherwise on terms and conditions satisfactory to the Required Lenders. “Subsidiary” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such Person in such Person's consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person. References to a Subsidiary shall mean a Subsidiary of the Parent unless the context expressly provides otherwise. “SVB” means Silicon Valley Bank. “SVB LC Agreement” means that certain Application and Agreement for Standby Letter of Credit dated as of April , 2016, pursuant to which SVB issued Irrevocable Standby Letter of Credit No. SVBSF01096, dated on or about April 7, 2016, in each case, as in effect on the Amendment No. 3 Effective Date. “SVB LC Expiration Date” means August 31, 2021. “SVB Mondee Guaranty” means that certain Unconditional Guaranty dated September 3, 2020, by Mondee in favor of SVB with respect to the SVB LC Agreement, as in effect on the Amendment No. 3 Effective Date. “Swap Obligation” means, with respect to any Guarantor, any obligation 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. “Taxes” means 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. “TCW” has the meaning specified therefor in the preamble hereto. “Term Loan” means, individually and collectively, the Term Loan A and the Term Loan B, as the context requires, each made by the Term Loan Lenders to the Borrowers pursuant to Section 2.01(a)(ii), Section 2.01(a)(iii), Section 2.01(a)(v) and Section 2.13,
- 74 - 146576709v1146576709v15 including, without limitation, the aggregate amount of the PIK Amount paid to the Lenders pursuant to Section 2.04(b). “Term Loan A” means, collectively, the portion of the Existing Term Loans redesignated as the Redesignated Term Loan A pursuant to Section 2.01(a)(ii) hereto, the Amendment No. 9 Term Loan and any Incremental Term Loan A made by the Term Loan A Lenders pursuant to Section 2.13 hereof. The aggregate principal amount of the Term Loan A as of the Amendment No. 921 Effective Date (and after giving effect to the funding ofis $27,956,058.04, which amount includes (1) $3,299,701.27 of PIK Amount paid in kind prior to the Amendment No. 9 Term Loan) is $30,000,00021 Effective Date and (2) $71,402.31 of fees paid in kind prior to the Amendment No. 21 Effective Date. “Term Loan A Commitment” means, with respect to each Lender, the commitment of such Lender to make the Term Loan A to the Borrowers on the Amendment No. 9 Effective Date in the amount set forth in Schedule 1.01(A)(iii) hereto or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement. The Term Loan A Commitment as of the Amendment No. 9 Effective Date is $15,000,000. The Term Loan A Commitment as of the Amendment No. 21 Effective Date is $0. “Term Loan A Lender” means a Lender with a Term Loan A Commitment or a Term Loan A. “Term Loan A Obligations” means any Obligations with respect to the Term Loan A (including, without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto). “Term Loan A Payments” means the payments in cash in respect of the principal of the Term Loan A (a) in an amount not less than $2,500,000 on the Amendment No. 21 Effective Date (the “Term Loan A Payment #1”) and (b) in an amount not less than $7,500,000 on the L/C Facility Closing Date (the “Term Loan A Payment #2”). “Term Loan B” means, collectively, the portion of the Existing Term Loans redesignated as the Redesignated Term Loan B pursuant to Section 2.01(a)(ii) hereof and the Amendment No. 21 Term Loan. The aggregate principal amount of the Term Loan B as of the Amendment No. 9 Effective Date is $137,752,696.40.L/C Facility Closing Date assuming the full funding of the Amendment No. 21 Term Loan #1 and Amendment No. 21 Term Loan #2 have occurred on or before the L/C Facility Closing Date will be $179,341,468.19, which amount will include (1) $44,860,054.41 of PIK Amount paid in kind prior to the Amendment No. 21 Effective Date, (2) $3,609,268.84 of fees paid in kind prior to the Amendment No. 21 Effective Date, (3) $3,974,974.13 of PIK Amount paid in kind on the Amendment No. 21 Effective Date and (4) $2,014,516.16 of fees paid in kind on the Amendment No. 21 Effective Date. “Term Loan B Commitment” means, with respect to each Lender, the commitment of such Lender to make the Term Loan B to the Borrowers in the aggregate amount extended prior to the Amendment No. 9 Effective Date or the Amendment No. 21 Term Loan
- 75 - 146576709v1146576709v15 Commitment of such Lender or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement. The Term Loan B Commitment as(after the funding of the Amendment No. 9 Effective21 Term Loan #2) as of the L/C Facility Closing Date iswill be $0. “Term Loan B Lender” means a Lender with a Term Loan B Commitment or a Term Loan B. “Term Loan B Obligations” means any Obligations with respect to the Term Loan B (including, without limitation, the principal thereof, the interest thereon, and the fees and expenses specifically related thereto). “Term Loan Commitment” means, individually and collectively, the Term Loan A Commitment and the Term Loan B Commitment, as the context requires, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement (it being understood and agreed that the commitment of such Lender to make Loans and the unused Term Loan Commitment of such Lender shall not be reduced by the amount of the PIK Amount). “Term Loan Commitment Termination Date” means the earliest to occur of (a) the Amendment No. 9 EffectiveL/C Facility Trigger Date, (b) the date the Term Loan Commitments are permanently reduced to zero pursuant to 2.01(b) and (c) the date of the termination of the Term Loan Commitments pursuant to Section 9.01. “Term Loan Lender” means a Lender with a Term Loan Commitment or a Term Loan. “Term Loan Obligations” means any Obligations with respect to the Term Loans (including, without limitation, the principal thereof, the interest thereon, the fees and expenses specifically related thereto, and the aggregate amount of the PIK Amount paid to the Lenders pursuant to Section 2.04(b)). “Term SOFR” means, (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
- 76 - 146576709v1146576709v15 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 a Reference Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Reference Rate 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 Reference Rate 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 Reference Rate SOFR Determination Day; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. “Term SOFR Adjustment” means, for any calculation with respect to a Reference Rate Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable Interest Period therefor: Interest Period Percentage One month 0.11448% Three months 0.26161% “Term SOFR Administrator” means 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” means the forward-looking term rate based on SOFR. “Termination Date” means the first date on which all of the Obligations are paid in full in cash and the Commitments of the Lenders are terminated. “Title Insurance Policy” means a mortgagee's loan policy, in form and substance satisfactory to the Administrative Agent, together with all endorsements made from time to time thereto, issued to the Administrative Agent by or on behalf of a title insurance company selected by or otherwise satisfactory to the Administrative Agent, insuring the Lien created by a Mortgage in an amount and on terms and with such endorsements satisfactory to the Administrative Agent, delivered to the Administrative Agent.
- 77 - 146576709v1146576709v15 “Total Commitment” means the sum of the Total Revolving Credit Commitment and the Total Term Loan Commitment. “Total Revolving Credit Commitment” means the sum of the amounts of the Lenders' Revolving Credit Commitments. “Total Term Loan A Commitment” means the sum of the amounts of the Lenders’ Term Loan A Commitments. “Total Term Loan B Commitment” means the sum of the amounts of the Lenders’ Term Loan B Commitments. “Total Term Loan Commitment” means the sum of the amounts of the Lenders’ Term Loan A Commitments and Term Loan B Commitments and the Incremental Term Loan A Commitments. “TravelPort Contract” means that certain Subscriber Agreement, dated as of May 20, 2019, by and between TravelPort LP and Mondee. “Treasury Rate” means, with respect to any prepayment, a rate per annum (computed on the basis of actual days elapsed over a year of 360 days) equal to the rate determined by the Administrative Agent on the date 3 Business Days prior to the date of such prepayment, to be the yield expressed as a rate listed in The Wall Street Journal for United States Treasury securities having a term of not greater than 12 months. “UCC Filing Authorization Letter” means a letter duly executed by each Loan Party authorizing the Administrative Agent to file appropriate financing statements on Form UCC-1 without the signature of such Loan Party in such office or offices as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interests purported to be created by each Security Agreement and each Mortgage. “Unadjusted Acquired EBITDA” means, with respect to any Unadjusted Acquired Entity or Business for any period, the amount for such period of Unadjusted EBITDA of such Unadjusted Acquired Entity or Business (determined in accordance with the definition of “Unadjusted EBITDA”). “Unadjusted Acquired Entity or Business” has the meaning specified therefor in the definition of “Unadjusted EBITDA.” “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. “Unadjusted EBITDA” means, with respect to any Person for any period: (a) the Consolidated Net Income of such Person for such period, plus
- 78 - 146576709v1146576709v15 (b) without duplication, the sum of the following amounts for such period to the extent deducted in the calculation of Consolidated Net Income for such period: (i) any provision for United States federal income taxes or other taxes measured by net income, (ii) Consolidated Net Interest Expense, (iii) any depreciation and amortization expense, (iv) any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, and (v) any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and Inventory), minus (c) without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated Net Income for such period: (i) any credit for United States federal income taxes or other taxes measured by net income, (ii) any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business, (iii) any gain from extraordinary, unusual or non-recurring items, and (iv) any other non-cash gain; in each case, determined on a consolidated basis in accordance with GAAP. Notwithstanding the foregoing: (A) for purposes of calculating the Unadjusted EBITDA of the Parent and its Subsidiaries for any period, (i) the Unadjusted EBITDA of theall Foreign Subsidiaries of the Parent in existence as of the Amendment No. 21 Effective Date, including Foreign Subsidiaries that are not Loan Parties in an amount in excess of the Unadjusted Foreign EBITDA Contribution Amount shall be disregarded, shall be included for all purposes with respect to such calculation of the Unadjusted EBITDA of the Parent and its Subsidiaries for such period, and and (ii) the Unadjusted EBITDA of all Foreign Subsidiaries of the Parent formed or acquired after the Amendment No. 21 Effective Date that are not Loan Parties shall be included for all purposes with respect to such calculation of the Unadjusted EBITDA of the Parent and its Subsidiaries for such period solely to the extent that the amount of such Unadjusted EBITDA
- 79 - 146576709v1146576709v15 does not exceed the Unadjusted Foreign EBITDA Contribution Amount (or such greater amount approved (in writing) by the Agents (in their respective sole discretion)), and (B) there shall be included in determining Unadjusted EBITDA for any period, without duplication, the Unadjusted Acquired EBITDA of any Person, property, business or asset acquired by the Parent or any of its Subsidiaries during such period to the extent not subsequently sold, transferred or otherwise disposed of (but not including the Unadjusted Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Unadjusted Acquired Entity or Business”) based on the Unadjusted Acquired EBITDA of such Unadjusted Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) determined on a historical pro forma basis in accordance with this Agreement and, for the avoidance of doubt, without duplication of any addbacks hereunder for such period. “Unadjusted Foreign EBITDA Contribution Amount” means, for any period, an amount (not less than zero) equal to the lesser of (a) 2.5% of Unadjusted EBITDA of the Parent and its Subsidiaries for such period (to the extent Unadjusted EBITDA is a positive number) and (b) $1,000,000. “Uniform Commercial Code” or “UCC” has the meaning specified therefor in Section 1.04. “Unused Revolving Credit Commitment Fee” has the meaning specified therefor in Section 2.06(b). “USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001)) as amended by the USA Patriot Improvement and Reauthorization Act of 2005 (Pub. L. 109-177, March 9, 2006) and as the same may have been or may be further renewed, extended, amended, or replaced. “U.S. Government Securities Business Day” means 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” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code. “WARN” has the meaning specified therefor in Section 6.01(p). “Warrants” means the MS Units issued pursuant to the MS Units Purchase Agreement, dated as of November 10, 2017 and the MS Units Purchase Agreement, dated as of August 8, 2018, each among the Parent, NH Expansion Credit Fund Holdings LP and North Haven Credit Partners II L.P.
- 80 - 146576709v1146576709v15 “Withholding Agent” means any Loan Party and any Agent. “Working Capital” means, at any date of determination thereof, (a) the sum, for any Person and its Subsidiaries, of (i) the unpaid face amount of all accounts receivable of such Person and its Subsidiaries as at such date of determination, plus (ii) the aggregate amount of prepaid expenses and other current assets of such Person and its Subsidiaries as at such date of determination (other than cash, Cash Equivalents and any Indebtedness owing to such Person or any of its Subsidiaries by Affiliates of such Person), minus (b) the sum, for such Person and its Subsidiaries, of (i) the unpaid amount of all accounts payable of such Person and its Subsidiaries as at such date of determination, plus (ii) the aggregate amount of all accrued expenses and other current liabilities of such Person and its Subsidiaries as at such date of determination (other than the current portion of long-term debt and the current portion of all accrued interest and taxes). Section 1.02 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person's successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) 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 (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. Section 1.03 Certain Matters of Construction. References in this Agreement to “determination” by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations). A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the requisite Lenders under Section 12.02. Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent, any agreement entered into by any Agent pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders. Wherever the phrase “to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the
- 81 - 146576709v1146576709v15 awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to (i) the actual knowledge of a senior officer of any Loan Party or (ii) the knowledge that a senior officer would have obtained if such officer had engaged in good faith and diligent performance of such officer's duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents of such Loan Party and a good faith attempt to ascertain the existence or accuracy of the matter to which such phrase relates. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists. In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder. Section 1.04 Accounting and Other Terms. (a) Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP. For purposes of determining compliance with any incurrence or expenditure tests set forth in Section 7.01, Section 7.02 and Section 7.03, any amounts so incurred or expended (to the extent incurred or expended in a currency other than Dollars) shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of any new incurrence or expenditures made under any provision of any such Section that regulates the Dollar amount outstanding at any time). Notwithstanding the foregoing, (i) with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with FASB ASC 840 on the definitions and covenants herein, GAAP as in effect on the Effective Date shall be applied and (ii) for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. (b) All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the
- 82 - 146576709v1146576709v15 “Uniform Commercial Code” or the “UCC”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as the Administrative Agent may otherwise determine. Without limiting the generality of the foregoing, any term defined in this Agreement by reference to the “Uniform Commercial Code” with respect to any Canadian Loan Party or Canadian Collateral shall also have any extended, alternative or analogous meaning given to such term in the applicable PPSA and other laws (including, without limitation, the Bills of Exchange Act (Canada) and the Depository Bills and Notes Act (Canada)), in all cases for the extension, preservation or betterment of the security and rights of the Collateral, (ii) all references in this Agreement to Article 7, Article 8 or Article 9 shall be deemed to refer also to applicable Canadian securities transfer laws including the Securities Transfer Act, 2006 (Ontario), as amended from time to time, (iii) all references in this Agreement to a financing statement, continuation statement, amendment or termination statement shall be deemed to refer also to the analogous documents used under the applicable PPSA, including, without limitation, where applicable, financing change statements, (iv) all references to the United States, or to any subdivision, department, agency or instrumentality thereof shall be deemed to refer also to Canada, or to any subdivision, department, agency or instrumentality thereof, (v) all references in this Agreement to the United States Copyright Office or the United States Patent and Trademark Office shall be deemed to refer also to the Canadian Intellectual Property Office, (vi) all references to federal or state securities law of the United States shall be deemed to refer also to analogous federal and provincial securities laws in Canada, and (vii) all references to “state or federal bankruptcy laws” shall be deemed to refer also to any insolvency proceeding occurring in Canada or under Canadian federal, provincial or territorial law. Section 1.05 Time References. Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to any Secured Party, such period shall in any event consist of at least one full day. Section 1.06 SPAC Restructuring. Upon the consummation of the SPAC Restructuring on or about the Amendment No. 7 Effective Date (a) references in the Financing Agreement and the other Loan Documents to (i) Mondee Holdings, LLC as the “Parent” shall be replaced with Mondee Holdings, Inc. as the “Parent” and (ii) Mondee Holdings II, Inc. as “Mondee Holdings II” shall be replaced with Mondee Holdings II, LLC as “Mondee Holdings II”, and (b) Mondee Holdings, LLC shall no longer be liable for any Loans or other Obligations under the Loan Documents and the Administrative Agent shall release any Lien granted to or held by the Administrative Agent upon any Collateral of Mondee Holdings, LLC and file UCC 3 termination statements for all UCC-1 financing statements and other applicable termination statements in applicable jurisdictions filed by the Administrative Agent with respect to Mondee Holdings, LLC.
- 83 - 146576709v1146576709v15 Section 1.07 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 the Reference Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or 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, the Reference Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of the Reference Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted 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 Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Reference Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to any 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 1.08 Falcon Disposition. Upon the consummation of the Falcon Disposition, the Administrative Agent shall release any Lien granted to or held by the Administrative Agent upon any Collateral of the Falcon Subsidiaries and Star Advantage Limited t/a Alta World Tour and file UCC-3 termination statements for all UCC-1 financing statements and other applicable termination statements in appliable jurisdictions filed by the Administrative Agent with respect to the Falcon Subsidiaries and Star Advantage Limited t/a Alta World Tour, in each case, at the sole cost and expense of the Loan Parties and without representation, warranty or recourse whatsoever. ARTICLE II THE LOANS Section 2.01 Commitments. (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth: (i) Each Revolving Loan Lender severally agrees to make Revolving Loans to the Borrowers at any time and from time to time until the Revolving Credit Commitment Termination Date, in an aggregate principal amount of Revolving Loans at any time outstanding not to exceed the amount of such Lender's Revolving Credit Commitment. (ii) Prior to the Amendment No. 9 Effective Date, certain Lenders made term loans to the Borrowers (or purchased term loans pursuant to an Assignment and
- 84 - 146576709v1146576709v15 Acceptance), the outstanding principal amount of which as of the Amendment No. 9 Effective Date is set forth opposite the name of such Lender on Schedule 1.01(A)(i) (collectively, the “Existing Term Loans”). On the Amendment No. 9 Effective Date: (A) an aggregate principal amount of the Existing Term Loans in the amount of $15,000,000 (collectively, the “Redesignated Term Loan A”) shall become a portion of the “Term Loan A” outstanding under, and subject to the terms and conditions of, this Agreement and (B) an aggregate principal amount of the Existing Term Loans in the amount of $137,752,696.40, shall become the “Term Loan B” outstanding under, and subject to the terms and conditions of, this Agreement (collectively, the “Redesignated Term Loan B” and together with the Redesignated Term Loan A, the “Redesignated Term Loans”). Each Lender set forth on Schedule 1.01(A)(ii) shall be deemed to have made Redesignated Term Loans to the Borrowers in the amounts set forth opposite the name of such Lender on Schedule 1.01(A)(ii). (iii) Each Amendment No. 9 Term Loan Lender severally agrees to make the Amendment No. 9 Term Loan to the Borrowers on the Amendment No. 9 Effective Date in an aggregate principal amount not to exceed the amount of such Lender's Amendment No. 9 Term Loan Commitment as set forth opposite the name of such Lender on Schedule 1.01(A)(iii). (iv) After giving effect to the transactions described in clauses (ii) and (iii) above, (A) the Redesignated Term Loan A and the Amendment No. 9 Term Loan shall, from and after the Amendment No. 9 Effective Date, collectively constitute the Term Loan A for all purposes under this Agreement and each other Loan Document and (B) the Redesignated Term Loan B shall, from and after the Amendment No. 9 Effective Date, collectively constitute the Term Loan B for all purposes under this Agreement and each other Loan Document. (v) (A) Each Amendment No. 21 Term Loan Lender severally agrees to make the Amendment No. 21 Term Loan #1 to the Borrowers on the Amendment No. 21 Effective Date in an aggregate principal amount not to exceed the amount of such Lender's Amendment No. 21 Term Loan Commitment #1 as set forth opposite the name of such Lender on Schedule 1.01(A)(v). (B) Each Amendment No. 21 Term Loan Lender severally agrees to make the Amendment No. 21 Term Loan #2 to the Borrowers on the L/C Facility Closing Date in an aggregate principal amount not to exceed the amount of such Lender's Amendment No. 21 Term Loan Commitment #2 as set forth opposite the name of such Lender on Schedule 1.01(A)(v). For the avoidance of doubt, no Amendment No. 21 Term Loan Lender shall have any obligation to make the Amendment No. 21 Term Loan #2 unless the L/C Facility Trigger Date occurs as a result of the occurrence of the L/C Facility Closing Date. (vi) (v) Any principal amount of the Term Loan which is repaid or prepaid may not be reborrowed. (vii) (A) The Borrowers hereby agree, upon the funding of the Amendment No. 21 Term Loan #1 on the Amendment No. 21 Effective Date, to wire the Term
- 85 - 146576709v1146576709v15 Loan A Lenders an aggregate amount of $2,500,000 of the proceeds of the Amendment No. 21 Term Loan #1 on the date of such funding as a Term Loan A Payment. (B) The Borrowers hereby agree, upon the funding of the Amendment No. 21 Term Loan #2 on the L/C Facility Closing Date, to wire the Term Loan A Lenders an aggregate amount of $7,500,000 of the proceeds of the Amendment No. 21 Term Loan #2 on the date of such funding as a Term Loan A Payment. (viii) Prior to the Amendment No. 21 Effective Date, (A) the Borrowers paid certain accrued interest in kind in the amount of the PIK Amounts by adding such amounts to the balance of the Loans (the “Pre-Amendment No. 21 PIK Interest Amounts”) and (B) the Borrowers paid certain fees under this Agreement in kind (the “Pre-Amendment No. 21 PIK Fee Amounts”). On the Amendment No. 21 Effective Date: (A) the parties hereto confirm that Pre-Amendment No. 21 PIK Interest Amounts in the amount of $3,974,974.13 constitute a portion of the Term Loan B outstanding under, and subject to the terms and conditions of, this Agreement; (B) the Pre-Amendment No. 21 PIK Fee Amounts in the amount of $2,014,516.16 shall become a portion of the Term Loan B outstanding under, and subject to the terms and conditions of, this Agreement; (C) the Deferred April Payment portion of the Refinancing Fee due and payable on April 30, 2024 pursuant to Section 2.06(f) in the amount of $739,046.48 shall become a portion of the Term Loan B outstanding under, and subject to the terms and conditions of, this Agreement; (D) the Deferred May Payment portion of the Refinancing Fee due and payable on May 31, 2024 pursuant to Section 2.06(f) in the amount of $668,328.06 shall become a portion of the Term Loan B outstanding under, and subject to the terms and conditions of, this Agreement; (E) the Deferred June Payment portion of the Refinancing Fee due and payable on June 30, 2024 pursuant to Section 2.06(f) in the amount of $607,141.62 shall become a portion of the Term Loan B outstanding under, and subject to the terms and conditions of, this Agreement; and (F) the Deferred June Interest Payment (as defined in Amendment No. 21) due and payable on June 30, 2024 in the amount of $3,974,974.13 shall be paid in kind by adding such accrued interest amount to, and thereafter such amount shall constitute a portion of, the Term Loan B outstanding under, and subject to the terms and conditions of, this Agreement (clauses (A)-(F), collectively, the “Amendment No. 21 PIK Payments”). After giving effect to the Amendment No. 21 PIK Payments, the Amendment No. 21 Loans #1 and the Term Loan A Payment #1, but not the Amendment No. 21 Fee, the Amendment No. 21 Loans #2 or the Term Loan A Payment #2, each Lender set forth on Schedule 1.01(A)(vi) shall be deemed to hold the amount of outstanding Term Loans set forth opposite the name of such Lender on Schedule 1.01(A)(vi). (vi) Notwithstanding the foregoing or anything herein to the contrary, the obligation of the Revolving Loan Lenders to make Revolving Loans shall be subject to Section 7 of Amendment No. 11. (b) Notwithstanding the foregoing: (i) The aggregate principal amount of Revolving Loans outstanding at any time during the period from the Effective Date until the Revolving Credit Commitment Termination Date shall not exceed the Total Revolving Credit Commitment. The Revolving Credit Commitment of each Lender shall automatically and permanently be reduced to zero on the Final Maturity Date. Within the foregoing limits, the Borrowers may borrow, repay and
- 86 - 146576709v1146576709v15 reborrow, the Revolving Loans after the Effective Date and prior to the Revolving Credit Commitment Termination Date, subject to the terms, provisions and limitations set forth herein. No Revolving Loans shall be advanced on the Effective Date. (ii) The Total Term Loan Commitment shall be permanently reduced immediately and without further action upon the making of each Term Loan in an aggregate amount equal to the aggregate amount of such Term Loan. Each Term Loan Lender's Term Loan Commitment shall be permanently reduced immediately and without further action upon the making of each Term Loan in an amount equal to the amount of such Term Loan Lender's Pro Rata Share of such Term Loan. The Total Term Loan Commitment and each Term Loan Lender's Term Loan Commitment shall terminate immediately and without further action on the Term Loan Commitment Termination Date. Section 2.02 Making the Loans. (a) The Administrative Borrower shall give the Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) (with a copy to the Administrative Agent) prior written notice (in substantially the form of Exhibit C hereto (a “Notice of Borrowing”)), not later than 12:00 noon (New York City time) on the date which is 5 Business Days prior to the date of the proposed Loan (or such shorter period as the Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) is willing to accommodate from time to time, but in no event later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan, which, with respect to the Amendment No. 921 Term LoanLoans #2 to be made on the Amendment No. 9 EffectiveL/C Facility Closing Date, shall be in the aggregate amount of $15,000,00012,500,000, (ii) whether the Loan is requested to be a Reference Rate Loan or a SOFR Loan and, in the case of a SOFR Loan, the initial Interest Period with respect thereto, (iii) the use of the proceeds of such proposed Loan, (iv) the proposed borrowing date, which must be a Business Day, and, with respect to the initial Term Loan, must be the Effective Date, and (v) the wire instructions of the Administrative Borrower's account or any other designated account(s) to which funds are to be disbursed. Promptly following receipt of a Notice of Borrowing, the applicable Agent shall notify each Lender of its pro rata share of such Loan. Each Lender shall thereafter make its Pro Rata Share of the Loan available to the applicable Agent, in immediately available funds, in the Revolving Agent's Account (in the case of Revolving Loans) or the Administrative Agent’s Account (in the case of Term Loans) no later than 12:00 noon (New York City time) on the date of the proposed Loan. Upon receipt of all requested funds, the applicable Agent will make the proceeds of such Loan available to the Administrative Borrower on the day of the proposed Loan by causing an amount, in immediately available funds to be deposited in an account designated by the Administrative Borrower in the applicable Notice of Borrowing. The Agents and the Lenders may act without liability upon the basis of written notice believed by the Agents (or either of them) in good faith to be from the Administrative Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Administrative Borrower to the Agents (or either of them)). Each Borrower hereby waives the right to dispute any Agent's record of the terms of any such Notice of Borrowing. Each Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrowers until such Agent receives written notice to the
- 87 - 146576709v1146576709v15 contrary. The Agents and the Lenders shall have no duty to verify the authenticity of the signature appearing on any Notice of Borrowing. Notwithstanding the foregoing, no Notice of Borrowing shall be required in connection with the Amendment No. 21 Term Loans #1 (which shall be a SOFR Loan with an Interest Period that ends on September 30, 2024), which shall be funded on the Amendment No. 21 Effective Date (subject to the penultimate paragraph of Section 5.02). (b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrowers shall be bound to make a borrowing in accordance therewith. Each Revolving Loan shall be made (i) in a minimum amount of $1,000,000 and shall be in an integral multiple of $250,000 and (ii) not more than 1 time each week. (c) (i) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Total Revolving Credit Commitment or the Total Term Loan Commitment, as the case may be, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender. (ii) Notwithstanding any other provision of this Agreement, and in order to reduce the number of fund transfers among the Borrowers, the Agents and the Lenders, the Borrowers, the Agents and the Lenders agree that the Revolving Agent may (but shall not be obligated to), and the Borrowers and the Lenders hereby irrevocably authorize the Revolving Agent to, fund, on behalf of the Revolving Loan Lenders, Revolving Loans pursuant to Section 2.01, subject to the procedures for settlement set forth in Section 2.02(d); provided, however, that (A) the Revolving Agent shall in no event fund any such Revolving Loans if the Revolving Agent shall have received written notice from the Administrative Agent or the Required Revolving Loan Lenders on the Business Day prior to the date of the proposed Revolving Loan that one or more of the conditions precedent contained in Section 5.02 will not be satisfied at the time of the proposed Revolving Loan, and (B) the Revolving Agent shall not otherwise be required to determine that, or take notice whether, the conditions precedent in Section 5.02 have been satisfied. If the Administrative Borrower gives a Notice of Borrowing requesting a Revolving Loan and the Revolving Agent elects not to fund such Revolving Loan on behalf of the Revolving Loan Lenders, then promptly after receipt of the Notice of Borrowing requesting such Revolving Loan, the Revolving Agent shall notify each Revolving Loan Lender of the specifics of the requested Revolving Loan and that it will not fund the requested Revolving Loan on behalf of the Revolving Loan Lenders. If the Revolving Agent notifies the Revolving Loan Lenders that it will not fund a requested Revolving Loan on behalf of the Revolving Loan Lenders, each Revolving Loan Lender shall make its Pro Rata Share of the Revolving Loan available to the Revolving Agent, in immediately available funds, in the Revolving Agent's Account no later than 3:00 p.m. (New York City time) (provided that the Revolving Agent requests payment from such Revolving Loan Lender not later than 1:00 p.m. (New York City time)) on the date of the proposed Revolving Loan. The Revolving Agent will make the proceeds of such Revolving Loans available to the Borrowers on the day of the proposed Revolving Loan by causing an amount, in immediately available funds, equal to the proceeds of all such Revolving Loans received by the Revolving Agent in the Revolving Agent's Account or
- 88 - 146576709v1146576709v15 the amount funded by the Revolving Agent on behalf of the Revolving Loan Lenders to be deposited in an account designated by the Administrative Borrower. (iii) If the Revolving Agent has notified the Revolving Loan Lenders that the Revolving Agent, on behalf of the Revolving Loan Lenders, will not fund a particular Revolving Loan pursuant to Section 2.02(c)(ii), the Revolving Agent may assume that each such Revolving Loan Lender has made such amount available to the Revolving Agent on such day and the Revolving Agent, in its sole discretion, may, but shall not be obligated to, cause a corresponding amount to be made available to the Borrowers on such day. If the Revolving Agent makes such corresponding amount available to the Borrowers and such corresponding amount is not in fact made available to the Revolving Agent by any such Revolving Loan Lender, the Revolving Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Revolving Agent, at the Federal Funds Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Revolving Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Revolving Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan made by the Revolving Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Revolving Agent, the Revolving Agent shall promptly thereafter notify the Administrative Borrower (with a copy of such notice to the Administrative Agent) of such failure and the Borrowers shall immediately pay such corresponding amount to the Revolving Agent for its own account. (iv) Nothing in this Section 2.02(c) shall be deemed to relieve any Revolving Loan Lender from its obligations to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Agents or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder. (d) (i) With respect to all periods for which the Revolving Agent has funded Revolving Loans pursuant to Section 2.02(c), on Friday of each week, or if the applicable Friday is not a Business Day, then on the following Business Day, or such shorter period as the Revolving Agent may from time to time select (any such week or shorter period being herein called a “Settlement Period”), the Revolving Agent shall notify each Revolving Loan Lender (with a copy of such notice to the Administrative Agent) of the unpaid principal amount of the Revolving Loans outstanding as of the last day of each such Settlement Period. In the event that such amount is greater than the unpaid principal amount of the Revolving Loans outstanding on the last day of the Settlement Period immediately preceding such Settlement Period (or, if there has been no preceding Settlement Period, the amount of the Revolving Loans made on the date of such Revolving Loan Lender's initial funding), each Revolving Loan Lender shall promptly (and in any event not later than 2:00 p.m. (New York City time) if the Revolving Agent requests payment from such Lender not later than 12:00 noon (New York City time) on such day) make available to the Revolving Agent its Pro Rata Share of the difference in immediately available funds. In the event that such amount is less than such unpaid principal amount, the Revolving Agent shall promptly pay over to each Revolving Loan Lender its Pro Rata Share of the difference in immediately available funds. In addition, if the Revolving Agent shall so request at any time when a Default or an Event of Default shall have occurred and be continuing, or any
- 89 - 146576709v1146576709v15 other event shall have occurred as a result of which the Revolving Agent shall determine that it is desirable to present claims against the Borrowers for repayment, each Revolving Loan Lender shall promptly remit to the Revolving Agent or, as the case may be, the Revolving Agent shall promptly remit to each Revolving Loan Lender, sufficient funds to adjust the interests of the Revolving Loan Lenders in the then outstanding Revolving Loans to such an extent that, after giving effect to such adjustment, each such Revolving Loan Lender's interest in the then outstanding Revolving Loans will be equal to its Pro Rata Share thereof. The obligations of the Revolving Agent and each Revolving Loan Lender under this Section 2.02(d) shall be absolute and unconditional. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans which have been funded by such Revolving Loan Lender. (ii) In the event that any Revolving Loan Lender fails to make any payment required to be made by it pursuant to Section 2.02(d)(i), the Revolving Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon, for each day from the date such payment was due until the date such amount is paid to the Revolving Agent, at the Federal Funds Rate for 3 Business Days and thereafter at the Reference Rate. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Revolving Agent, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the amount so advanced by the Revolving Agent to the Borrowers shall, for all purposes hereof, be a Revolving Loan made by the Revolving Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Revolving Agent, the Revolving Agent shall promptly thereafter notify the Administrative Borrower (with a copy of such notice to the Administrative Agent) of such failure and the Borrowers shall immediately pay such corresponding amount to the Revolving Agent for its own account. Nothing in this Section 2.02(d)(ii) shall be deemed to relieve any Revolving Loan Lender from its obligation to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that the Agents or the Borrowers may have against any Revolving Loan Lender as a result of any default by such Revolving Loan Lender hereunder. Section 2.03 Repayment of Loans; Evidence of Debt. (a) The outstanding principal of all Revolving Loans shall be due and payable on the Final Maturity Date or, if earlier, on the date on which they are declared due and payable pursuant to the terms of this Agreement. (b) The outstanding unpaid principal amount of the initial Term Loan made on the Effective Date and each additional Term Loan made after the Effective Date shall be repaid in consecutive quarterly installments on the last Business Day of each Fiscal Quarter (each a “Payment Date”), (i) beginning with the Fiscal Quarter ending June 30, 2022. Each, each such quarterly installment shall be in an aggregate amount equal to the percentage of the aggregate original principal amount of such initial Term Loan and each such additional Term Loan, as applicable, set forth below opposite the applicable Payment Date set forth below: Payment Date Quarterly Percentage The last Business Day of the Fiscal Quarter ended 3.125%
- 90 - 146576709v1146576709v15 Payment Date Quarterly Amount The last Business Day of the Fiscal Quarter ended September 30, 2024 and December 31, 2024 $0 The last Business Day of the Fiscal Quarter ended March 31, 2025 and June 30, 2025 $900,000 The last Business Day of the Fiscal Quarter ended on September 30, 2025 and each Fiscal Quarter ended thereafter $2,250,000 Payment Date Quarterly Percentage June 30, 2022 The last Business Day of each Fiscal Quarter ended on and after September 30, 2022 (other than the Fiscal Quarters ended March 31, 2024 and June 30, 2024) 1.25% The last Business Day of the Fiscal Quarters ended March 31, 2024 and June 30, 2024 0% and (ii) beginning with the Fiscal Quarter ending immediately after the L/C Facility Closing Date (solely to the extent the L/C Facility Closing Date occurs), each such quarterly installment shall be in an aggregate amount set forth below opposite the applicable Payment Date set forth below: Notwithstanding the foregoing, the last installment in respect of the Term Loan shall be in the amount necessary to repay in full the unpaid principal amount of the Term Loan. The outstanding unpaid principal amount of the Term Loan, and all accrued and unpaid interest thereon, shall be due and payable on the earliest of (A) the Final Maturity Date and (B) the date
- 91 - 146576709v1146576709v15 on which the Term Loan is declared due and payable pursuant to the terms of Section 9.01 of this Agreement. (c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. (d) The Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) hereunder for the account of the Lenders and each Lender's share thereof. (e) The entries made in the accounts maintained pursuant to Section 2.03(c) or Section 2.03(d) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that (i) the failure of any Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Loans in accordance with the terms of this Agreement and (ii) in the event of any conflict between the entries made in the accounts maintained pursuant to Section 2.03(c) and the accounts maintained pursuant to Section 2.03(d), the accounts maintained pursuant to Section 2.03(d) shall govern and control. (f) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrowers shall execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns in a form substantially similar to Exhibit E and reasonably acceptable to the Administrative Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form payable to such Lender and its registered assigns. Section 2.04 Interest. (a) Revolving Loans. Subject to the terms of this Agreement, at the option of the Administrative Borrower, each Revolving Loan shall be either a Reference Rate Loan or a SOFR Loan. Each Revolving Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Reference Rate plus the Applicable Margin. Each Revolving Loan that is a SOFR Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of such Loan until repaid, at a rate per annum equal to the Adjusted Term SOFR for the Interest Period in effect for such Loan plus the Applicable Margin. (b) Term Loan. Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan (including, without limitation, the PIK Amount relating thereto) or any portion thereof shall be either a Reference Rate Loan or a SOFR Loan. Each
- 92 - 146576709v1146576709v15 portion of the Term Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Term Loan until repaid, at a rate per annum equal to the Reference Rate plus the Applicable Margin, and each portion of the Term Loan that is a SOFR Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Loan until repaid, at a rate per annum equal to the Adjusted Term SOFR for the Interest Period in effect for the Term Loan (or such portion thereof) plus the Applicable Margin; provided that (i) all interest accruing on the Term Loan during the period from December 24, 2019 through and including March 31, 2021 shall be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan, (ii) all interest accruing on the Term Loan during the period from April 1, 2021 through June 30, 2021 at a rate per annum of up to 5.00% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan if the Administrative Borrower elects to so capitalize such interest, (iii) all interest accruing on the Term Loan during the period from July 1, 2021 through December 31, 2021 at a rate per annum of up to 4.00% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan if the Administrative Borrower elects to so capitalize such interest, (iv) all interest accruing on the Term Loan during the period from September 30, 2021 through March 31, 2022 shall be paid by capitalizing such interest at a rate per annum equal to (A) for each portion of the Term Loan that is a Reference Rate Loan, the Reference Rate plus the Applicable Margin and (B) for each portion of the Term Loan that is a SOFR Loan, the Adjusted Term SOFR plus the Applicable Margin, and, in each case, adding such capitalized interest to the then outstanding principal amount of the Term Loan, and (v) after receipt of the SPAC Prepayment Amount, all interest accruing on the Term Loan after the SPAC Effective Date at a rate per annum of up to 3.50% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan if the Administrative Borrower elects to so capitalize such interest, which election; provided that, if the L/C Facility Trigger Date occurs as a result of the occurrence of the L/C Facility Closing Date, then (A) with respect to interest accruing on the Term Loan B during the period from June 28, 2024 through and including September 30, 2024, all such interest may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan B if the Administrative Borrower elects to so capitalize such interest (and for the avoidance of doubt, all interest accruing on the Term Loan A shall be paid in cash), (B) all interest accruing on the Term Loan B during the period from October 1, 2024 through and including December 31, 2024 at a rate per annum of up to 4.50% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan B if the Administrative Borrower elects to so capitalize such interest (and for the avoidance of doubt, all interest accruing on the Term Loan A shall be paid in cash), (C) all interest accruing on the Term Loan B during the period from January 1, 2025 through and including March 31, 2025 at a rate per annum of up to 2.50% may be paid by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan B if the Administrative Borrower elects to so capitalize such interest (and for the avoidance of doubt, all interest accruing on the Term Loan A shall be paid in cash), and (D) all interest accruing on the Term Loan thereafter shall be paid in cash (it being understood and agreed that, in the case of each of the foregoing clauses (ii) through (v), above and clauses (A) through (C) of the proviso above, such election to so capitalize such interest (1) shall be automatically deemed made on the
- 93 - 146576709v1146576709v15 Effective Date for each interest payment date occurring in the Fiscal Year December 31, 2021 and (B) shall thereafter be made in writing by the Administrative Borrower not less than 5 Business Days prior to (1) if a SOFR Loan, the commencement of the relevant Interest Period or (2) if a Reference Rate Loan, the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries2) shall be automatically deemed made on the Amendment No. 21 Effective Date for each interest payment date occurring during the period commencing on the Amendment No. 21 Effective Date through and including March 31, 2025) (and for the avoidance of doubt, all interest accruing on the Term Loan A shall be paid in cash). Any interest to be so capitalized pursuant to this clause (b) shall be capitalized on (x) if a SOFR Loan, the last day of the applicable Interest Period with respect thereto, or (y) if a Reference Rate Loan, the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries and, in each case, added to the then outstanding principal amount of the Term Loan B and, thereafter, shall bear interest as provided hereunder as if it had originally been part of the outstanding principal of the Term Loan B. (c) Default Interest. To the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the occurrence and during the continuance of an Event of Default, the principal (including the PIK Amount) of, and all accrued and unpaid interest on, all Loans, fees, indemnities or any other Obligations of the Loan Parties under this Agreement and the other Loan Documents, shall bear interest, from the date such Event of Default occurred until the date such Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate. (d) Interest Payment. Interest (other than the PIK Amount, which shall be capitalized in accordance with Section 2.04(b)) on each Loan shall be payable (i) in the case of a Reference Rate Loan, quarterly, in arrears, on the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries, commencing on the last Business Day of the Fiscal Quarter of the Parent and its Subsidiaries in which such Loan is made, (ii) in the case of a SOFR Loan, on the last day of each Interest Period applicable to such Loan and (iii) in the case of each Loan, at maturity (whether upon demand, by acceleration or otherwise). Interest at the Post-Default Rate shall be payable on demand. Each Borrower hereby authorizes the Revolving Agent to, and the Revolving Agent may, from time to time until the Revolving Credit Commitment Termination Date, charge the Loan Account pursuant to Section 4.01 with the amount of any interest payment due hereunder. Notwithstanding the foregoing, during any period when any dividends are payable in cash to the preferred equityholders of the Parent pursuant to the Preferred COD on a monthly basis, interest payable pursuant to clauses (d)(i) and (d)(ii) above shall be payable on the last Business Day of each calendar month. (e) General. All interest and fees shall be computed on the basis of a year of 360 days for the actual number of days, including the first day but excluding the last day, elapsed. (f) September 30, 2024 Interest. Notwithstanding the foregoing or anything to the contrary herein or in any other Loan Document, for the avoidance of doubt, all of the interest payment that would otherwise be due on September 30, 2024 (other than such portion due to Wingspire) shall be paid on September 30, 2024 by capitalizing such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan (other than
- 94 - 146576709v1146576709v15 the Term Loans held by Wingspire) (and for the avoidance of doubt, all interest accruing on the Term Loan A shall be paid in cash)). Section 2.05 Reduction of Commitments; Prepayment of Loans. (a) Reduction of Commitments. (i) Revolving Credit Commitments. The Total Revolving Credit Commitment shall terminate on the Revolving Credit Commitment Termination Date. The Borrowers may reduce the Total Revolving Credit Commitment to an amount (which may be zero) not less than the greater of (A) $5,000,000 and (B) the sum of (1) the aggregate unpaid principal amount of all Revolving Loans then outstanding, and (2) the aggregate principal amount of all Revolving Loans not yet made as to which a Notice of Borrowing has been given by the Administrative Borrower under Section 2.02. Each such reduction shall be (x) in an amount which is an integral multiple of $1,000,000 (or by the full amount of the Total Revolving Credit Commitment in effect immediately prior to such reduction if such amount at that time is less than $1,000,000), (y) made by providing not less than 5 Business Days' prior written notice to the Revolving Agent (with a copy of such notice to the Administrative Agent), and (z) irrevocable. Once reduced, the Total Revolving Credit Commitment may not be increased. Each such reduction of the Total Revolving Credit Commitment shall reduce the Revolving Credit Commitment of each Lender proportionately in accordance with its Pro Rata Share thereof. (ii) Term Loan. The Total Term Loan Commitment shall be reduced and terminated from time to time in accordance with Section 2.01(b)(ii). The Borrowers may, at any time and from time to time, upon at least 5 Business Days' prior written notice to the Administrative Agent, voluntarily reduce or terminate the remaining Total Term Loan Commitment. (b) Optional Prepayment. (i) Revolving Loans. The Borrowers may, at any time and from time to time, prepay the principal of any Revolving Loan, in whole or in part by providing written notice to the Revolving Agent (with a copy of such notice to the Administrative Agent) by 12:00 noon (New York City time) one Business Day prior to the date of such prepayment. (ii) Term Loan. The Borrowers may, at any time and from time to time, upon at least 5 Business Days' prior written notice to the Administrative Agent, prepay the principal of the Term Loan, in whole or in part. Each prepayment made pursuant to this Section 2.05(b)(ii) shall be accompanied by the payment of (A) accrued interest to the date of such payment on the amount prepaid (which for the avoidance of doubt, shall not include any PIK Amount) and (B) the Applicable Premium payable in connection with such prepayment of the Term Loan. Each such prepayment shall be applied against the remaining installments of principal due on the Term Loan in the inverse order of maturity and pro rata to the Term Loan A and Term Loan B. Notwithstanding the foregoing, the Borrowers shall be required to provide prior written notice to the Administrative Agent of any prepayment of the Term Loan to be made with proceeds of the SPAC Restructuring (other than the SPAC Prepayment Amount) (such
- 95 - 146576709v1146576709v15 notice, the “SPAC Prepayment Notice”) and such SPAC Prepayment Notice shall be (1) irrevocable and (2) delivered to the Administrative Agent at least one (1) day (but not less than 24 hours) prior to the proposed SPAC Effective Date. (iii) Termination of Agreement. The Borrowers may, upon at least 30 days prior written notice to the Agents, terminate this Agreement by paying to the Administrative Agent, in cash, the Obligations (including, without limitation, the Applicable Premium, if any), in full; provided that such notice may provide that it is conditioned upon the consummation of other financing or the consummation of a sale of Equity Interests, in which case, such notice may be revoked or extended by the Borrowers if any such condition is not satisfied prior to the date of termination of this Agreement in such notice. If the Administrative Borrower has sent a notice of termination pursuant to this Section 2.05(b)(iii) which is not conditional, then the Lenders' obligations to extend credit hereunder shall terminate and the Borrowers shall be obligated to repay the Obligations (including, without limitation, the Applicable Premium), in full. (c) Mandatory Prepayment. (i) Contemporaneously with the delivery to the Agents and the Lenders of audited annual financial statements pursuant to Section 7.01(a)(iii), commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ended December 31, 2022, or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required to be delivered pursuant to Section 7.01(a)(iii), on the date such statements are required to be delivered to the Agents and the Lenders pursuant to Section 7.01(a)(iii), the Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to (A) if the Leverage Ratio of the Parent and its Subsidiaries as of the last day of such Fiscal Year is greater than or equal to 2.75 to 1.00, 75% of the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year or (B) if the Leverage Ratio of the Parent and its Subsidiaries as of the last day of such Fiscal Year is less than 2.75 to 1.00, 50% of the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year. (ii) Immediately upon any Disposition (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (g), (h) or (k) of the definition of Permitted Disposition) by any Loan Party or its Subsidiaries, the Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to the Agents as a prepayment of the Loans) shall exceed for all such Dispositions $1,500,000 in any Fiscal Year. Nothing contained in this Section 2.05(c)(ii) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii) (iii) Upon the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Permitted Indebtedness, including, for the avoidance of doubt, CARES Act Indebtedness, CEBA Indebtedness and/or HASCAP Indebtedness), or upon an Equity Issuance (other than any Excluded Equity Issuance and the Amendment No. 2 Equity Contribution), the Borrowers shall prepay the outstanding amount of
- 96 - 146576709v1146576709v15 the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith. The provisions of this Section 2.05(c)(iii) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement. (iv) Upon the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, the Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith to the extent that (A) the aggregate amount of Extraordinary Receipts under clauses (c) (other than with respect to business interruption insurance) or (e) of the definition thereof received by all Loan Parties and their Subsidiaries (and not paid to the Agents as a prepayment of the Loans) shall exceed $1,500,000 in any Fiscal Year and (B) the aggregate amount of Extraordinary Receipts under clauses (a), (b), (c) (but only with respect to business interruption insurance), (d), (f) or (g) of the definition thereof received by all Loan Parties and their Subsidiaries (and not paid to the Agents as a prepayment of the Loans) shall exceed $5,000,000 over the term of this Agreement. (v) Immediately upon receipt by the Borrowers of the proceeds of any (A) Permitted Cure Equity pursuant to Section 9.02 or (B) Capex Equity Contribution pursuant to Section 7.03(a), the Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of such proceeds. (vi) Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party or any of its Subsidiaries in connection with a Disposition or the receipt of Extraordinary Receipts consisting of insurance proceeds or condemnation awards that would otherwise be required to be used to prepay the Obligations pursuant to Section 2.05(c)(ii) or Section 2.05(c)(iv), as the case may be, up to $2,500,000 in the aggregate in any Fiscal Year of the Net Cash Proceeds from all such Dispositions and Extraordinary Receipts shall not be required to be so used to prepay the Obligations to the extent that such Net Cash Proceeds are used to replace, repair or restore properties or assets (other than current assets) used in such Person's business, provided that, (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) the Administrative Borrower delivers a certificate to the Agents within 5 days after such Disposition or loss, destruction or taking, as the case may be, stating that such Net Cash Proceeds shall be used to replace, repair or restore properties or assets used in such Person's business within a period specified in such certificate not to exceed 180 days after the date of receipt of such Net Cash Proceeds (which certificate shall set forth estimates of the Net Cash Proceeds to be so expended), (C) such Net Cash Proceeds are deposited in an account subject to a Control Agreement, and (D) upon the earlier of (1) the expiration of the period specified in the relevant certificate furnished to the Agents pursuant to clause (B) above or (2) the occurrence of a Default or an Event of Default, such Net Cash Proceeds, if not theretofore so used, shall be used to prepay the Obligations in accordance with Section 2.05(c)(ii) or Section 2.05(c)(iv) as applicable. (vii) The Administrative Borrower shall provide written notice to the Agents by 12:00 noon (New York City time) one Business Day prior to each mandatory prepayment hereunder.
- 97 - 146576709v1146576709v15 (d) Application of Payments. Each prepayment pursuant to subsections (c)(i), (c)(ii), (c)(iii), (c)(iv) and (c)(v) above shall be applied as follows: (i) first, to the Term Loans, until paid in full and, (ii) second, to the Revolving Loans (with a corresponding permanent reduction in the Revolving Credit Commitments), until paid in full. Each such prepayment of the Term Loans in clause (i) above shall be applied against the remaining installments of principal of the Term Loans in the inverse order of maturity and on a pro rata basis to Term Loan A and Term Loan B. Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, if the Administrative Agent has elected, or has been directed by the Required Lenders, to apply payments in respect of any Obligations in accordance with Section 4.03(b), prepayments required under Section 2.05(c) shall be applied in the manner set forth in Section 4.03(b). (e) Interest and Fees. Any prepayment made pursuant to this Section 2.05 shall be accompanied by (i) accrued interest on the principal amount being prepaid to the date of prepayment, (ii) any Funding Losses payable pursuant to Section 2.08, (iii) the Applicable Premium payable in connection with such prepayment of the Term Loan, and (iv) if such prepayment would reduce the amount of the outstanding Loans to zero at a time when the Total Revolving Credit Commitment has been terminated, such prepayment shall be accompanied by the payment of all fees accrued to such date pursuant to Section 2.06. (f) Cumulative Prepayments. Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05. Section 2.06 Fees. (a) Closing Fee; Amendment Fees. (i) On or prior to the Effective Date, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, a nonrefundable closing fee (the “Closing Fee”) equal to $2,200,000, which shall be deemed fully earned when paid. (ii) On the Amendment No. 9 Effective Date, the Borrowers shall pay to the Administrative Agent, for the account of the Amendment No. 9 Term Loan Lenders, in accordance with their Pro Rata Shares, a nonrefundable closing fee (the “Amendment No. 9 Fee”) equal to $300,000, which shall be deemed fully earned when paid. (iii) On the Amendment No. 11 Effective Date, the Borrowers shall pay to the Administrative Agent, for the account of the Term Loan Lenders, in accordance with their Pro Rata Shares, a nonrefundable closing fee (the “Amendment No. 11 Fee”) equal to $1,659,844.26, which shall be deemed fully earned when paid. (iv) The Borrowers shall pay to the Administrative Agent, for the account of the Term Loan Lenders, a nonrefundable closing fee equal to $1,500,000 (the “Amendment No. 12 Fee”), which shall be deemed fully earned on the Amendment No. 12 Effective Date, shall be non-refundable and shall be paid (x) to Wingspire in cash on the Amendment No. 21 Effective Date in the amount of $142,804.62 and (y) shall be paid to the
- 98 - 146576709v1146576709v15 other Term Loan Lenders in cash on the date that is the earliest to occur of (A) the prepayment in full of the Obligations, (B) the Final Maturity Date and (C) the date on which the Obligations are declared due and payable pursuant to the terms of Section 9.01 of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, any other Loan Document or any agreement among the Agents and the Lenders, each of the Lenders acknowledges and agrees that (A) Wingspire shall be entitled to receive $142,804.62 of the Amendment No. 12 Fee and (B) the other Term Loan Lenders (other than Wingspire) shall be entitled to receive, in accordance with their Pro Rata Shares, $1,357,195.38 of the Amendment No. 12 Fee. (v) The Borrowers shall pay to the Administrative Agent, for the account of the Term Loan Lenders, in accordance with their Pro Rata Shares, a nonrefundable closing fee equal to $426,914.39 (the “Amendment No. 13 Fee”), which Amendment No. 13 Fee shall (A) be deemed fully earned and paid on the Amendment No. 13 Effective Date “in-kind” by adding the Amendment No. 13 Fee to the then-outstanding principal amount of the Term Loans and (B) thereafter be treated as if it had originally been part of the outstanding principal amount of the Term Loans. (vi) The Borrowers shall pay to the Administrative Agent, for the account of the Term Loan Lenders, in accordance with their Pro Rata Shares, a nonrefundable closing fee equal to $9,416,496.56 (the “Amendment No. 21 Fee”), which Amendment No. 21 Fee shall (A) be deemed fully earned and paid “in-kind” on the L/C Facility Closing Date by adding the Amendment No. 21 Fee to the then-outstanding principal amount of the Term Loans on such date on a pro rata basis and (B) thereafter be treated as if it had originally been part of the outstanding principal amount of the Term Loans. (b) Revolving Credit Fees. (i) (b) Unused Revolving Credit Commitment Fee. From and after the Effective Date and until the Revolving Credit Commitment Termination Date, the Borrowers shall pay to the Revolving Agent, for the account of the Revolving Loan Lenders in accordance with their Pro Rata Shares, quarterly in arrears on the last Business Day of each Fiscal Quarter of the Parent and its Subsidiaries commencing December 31, 2019, a non-refundable unused commitment fee (the “Unused Revolving Credit Commitment Fee”), which shall accrue at the rate per annum of 1.00% on the excess, if any, of the Total Revolving Credit Commitment over the sum of the average principal amount of all Revolving Loans outstanding from time to time during the preceding Fiscal Quarter and which shall be deemed fully earned when paid. Notwithstanding the foregoing, the Unused Revolving Commitment Fee for each of the Fiscal Quarters ending March 31, 2020, June 30, 2020 and September 30, 2020 will be deferred and paid on December 31, 2020. (ii) Revolving Credit Commitment Fee. On the first date on which any Revolving Loan is made after the L/C Facility Closing Date in accordance with the terms hereof, the Borrowers shall pay to the Revolving Agent, for the account of the Revolving Loan Lenders in accordance with their Pro Rata Shares, in immediately available funds, a fee equal to 2.50% of the Total Revolving Credit Commitment on such date, which fee shall be deemed fully earned, non-refundable and payable on the date such Revolving Loan is made.
- 99 - 146576709v1146576709v15 (c) Administration Fee. Commencing with the 2024 Fiscal Year and until the Termination Date, the Borrowers shall pay to the Agents, for the account of the Agents, a non-refundable administration fee (the “Administration Fee”) equal to $26,250 each Fiscal Quarter, which shall be deemed fully earned when paid and which shall be payable quarterly in advance on the first Business Day of each Fiscal Quarter. (d) Applicable Premium. (i) Upon the occurrence of an Applicable Premium Trigger Event, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares (solely in respect of the Term Loans), the Applicable Premium. (ii) Any Applicable Premium payable in accordance with this Section 2.06(d) shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event and the Loan Parties agree that it is reasonable under the circumstances currently existing. THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREMIUM IN CONNECTION WITH ANY ACCELERATION. (iii) The Loan Parties expressly agree that: (A) the Applicable Premium is reasonable and is the product of an arm's length transaction between sophisticated business people, ably represented by counsel; (B) the Applicable Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Applicable Premium; (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (E) their agreement to pay the Applicable Premium is a material inducement to Lenders to provide the Commitments and make the Loans, and (F) the Applicable Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Agents and the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Agents and the Lenders or profits lost by the Agents and the Lenders as a result of such Applicable Premium Trigger Event. (iv) Nothing contained in this Section 2.06(d) shall permit any prepayment of the Loans or reduction of the Commitments not otherwise permitted by the terms of this Agreement or any other Loan Document. (e) Audit and Collateral Monitoring Fees. The Borrowers acknowledge that pursuant to Section 7.01(f), representatives of the Agents may visit any or all of the Loan Parties and/or conduct audits, inspections, valuations, appraisals or examinations of any or all of the Loan Parties at any time and from time to time. The Borrowers agree to pay (i) $1,500 per day per examiner plus the examiner's out-of-pocket costs and reasonable expenses incurred in connection with all such visits, audits, inspections, valuations, appraisals or examinations and (ii) the cost of all visits, audits, inspections, valuations, appraisals or examinations conducted by a third party on behalf of the Agents; provided, that so long as no Event of Default shall have occurred and be continuing, the Borrowers shall not be obligated to reimburse the Agents for
- 100 - 146576709v1146576709v15 more than one such visit, audit, inspection, valuation, appraisal or examination during any calendar year. (f) Refinancing Fee. The Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with a written agreement among the Agents and the Lenders, monthly in arrears on the last Business Day of each fiscal month of the Parent and its Subsidiaries, commencing on April 30, 2024 and ending on July 31, 2024, a non-refundable fee in the amount of 0.50% of the outstanding principal amount of the Term Loans on such date (each such amount, a “Refinancing Fee”), which Refinancing Fee shall be deemed fully earned and payable on April 30, 2024 and on the last Business Day of each fiscal month of the Parent and its Subsidiaries ending thereafter until the Termination DateJuly 31, 2024. Notwithstanding anything to the contrary contained in this Agreement, any other Loan Document or any agreement among the Agents and the Lenders, each of the Lenders acknowledges and agrees that (v) (A) Wingspire shall be entitled to receive $141,436.84 of the Refinancing Fee due and payable on April 30, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to Wingspire will continue to accrue on and after May 1, 2024 and be due and payable to Wingspire in accordance with this Section 2.06(f)) and (B) the other Term Loan Lenders (other than Wingspire) shall be entitled to receive, in accordance with their Pro Rata Shares, $739,046.48 of the Refinancing Fee due and payable on April 30, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to the other Term Loan Lenders (other than Wingspire) will continue to accrue on and after May 1, 2024 and be due and payable to the other Term Loan Lenders (other than Wingspire) in accordance with this Section 2.06(f)); provided, further, that the Agents and the Lenders consent to (1) the payment by the Loan Parties in an amount of $141,436.84 of the Refinancing Fee that was due and payable on April 30, 2024 to Wingspire to be paid in cash on May 7, 2024 and (2) the deferment by the Loan Parties in an amount of $739,046.48 of the Refinancing Fee due and payable on April 30, 2024 (the “Deferred April Payment”), which Deferred April Payment shall be paid in full, in cash, on the date that is the earliest to occur of (w) August 9, 2024, (x) the prepayment in full of the Obligations, (y) the Final Maturity Date and (z) the date on which the Obligations are declared due and payable pursuant to the terms of Section 9.01 of this Agreement on the Amendment No. 21 Effective Date by capitalizing such Deferred April Payment and adding such capitalized amount to the then outstanding principal amount of the Term Loan (other than the Term Loans held by Wingspire) on the Amendment No. 21 Effective Date, (ii) (A) Wingspire shall be entitled to receive $212,155.27 of the Refinancing Fee due and payable on May 31, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to Wingspire will continue to accrue on and after June 1, 2024 and be due and payable to Wingspire in accordance with this Section 2.06(f)) and (B) the other Term Loan Lenders (other than Wingspire) shall be entitled to receive, in accordance with their Pro Rata Shares, $668,328.06 of the Refinancing Fee due and payable on May 31, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to the other Term Loan Lenders (other than Wingspire) will continue to accrue on and after June 1, 2024 and be due and payable to the other Term Loan Lenders (other than Wingspire) in accordance with this Section 2.06(f)); provided, further, that the Agents and the Lenders consent to (1) the payment by the Loan Parties in an amount of $212,155.27 of the Refinancing Fee that was due and payable on May 31, 2024 to Wingspire to be paid in cash on June 3, 2024 and (2) the deferment by the Loan Parties in an amount of $668,328.06 of the Refinancing Fee due and payable on May 31, 2024 (the “Deferred May Payment”), which Deferred May Payment shall be paid in full, in cash, on the date that is the earliest to occur of (w) August 9, 2024, (x) the prepayment in full of the Obligations, (y) the
- 101 - 146576709v1146576709v15 Final Maturity Date and (z) the date on which the Obligations are declared due and payable pursuant to the terms of Section 9.01 of this Agreement on the Amendment No. 21 Effective Date by capitalizing such Deferred May Payment and adding such capitalized amount to the then outstanding principal amount of the Term Loan (other than the Term Loans held by Wingspire) on the Amendment No. 21 Effective Date, (iii)(A) Wingspire shall be entitled to receive $279,560.58 of the Refinancing Fee due and payable on June 30, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to Wingspire will continue to accrue on and after July 1, 2024 and be due and payable to Wingspire in accordance with this Section 2.06(f)) and (B) the other Term Loan Lenders (other than Wingspire) shall be entitled to receive, in accordance with their Pro Rata Shares, $607,141.62 of the Refinancing Fee due and payable on June 30, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to the other Term Loan Lenders (other than Wingspire) will continue to accrue on and after July 1, 2024 and be due and payable to the other Term Loan Lenders (other than Wingspire) in accordance with this Section 2.06(f)); provided, further, that the Agents and the Lenders consent to (1) the payment by the Loan Parties in an amount of $279,560.58 of the Refinancing Fee that was due and payable on June 30, 2024 to Wingspire to be paid in cash on June 30, 2024 and (2) the deferment by the Loan Parties in an amount of $607,141.62 of the Refinancing Fee due and payable on June 30, 2024 (the “Deferred June Payment”), which Deferred June Payment shall be paid in full, in cash, on the date that is the earliest to occur of (w) August 9, 2024, (x) the prepayment in full of the Obligations, (y) the Final Maturity Date and (z) the date on which the Obligations are declared due and payable pursuant to the terms of Section 9.01 of this Agreement on the Amendment No. 21 Effective Date by capitalizing such Deferred June Payment and adding such capitalized amount to the then outstanding principal amount of the Term Loan (other than the Term Loans held by Wingspire) on the Amendment No. 21 Effective Date, and (iv)(A) Wingspire shall be entitled to receive $279,560.58 of the Refinancing Fee due and payable on July 31, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to Wingspire will continue to accrue on and after August 1, 2024 and be due and payable to Wingspire in accordance with this Section 2.06(f)) and (B) the other Term Loan Lenders (other than Wingspire) shall be entitled to receive, in accordance with their Pro Rata Shares, $607,141.62 of the Refinancing Fee due and payable on July 31, 2024 (and for the avoidance of doubt, the Refinancing Fee payable to the other Term Loan Lenders (other than Wingspire) will continue to accrue on and after August 1, 2024 and be due and payable to the other Term Loan Lenders (other than Wingspire) in accordance with this Section 2.06(f)); provided, further, that the Agents and the Lenders consent to (1) the payment by the Loan Parties in an amount of $279,560.58 of the Refinancing Fee that was due and payable on July 31, 2024 to Wingspire to be paid in cash on July 31, 2024 and (2) the deferment by the Loan Parties in an amount of $607,141.62 of the Refinancing Fee due and payable on July 31, 2024 (the “Deferred July Payment”), which Deferred July Payment shall be paid in full, in cash, on August 31, 2024; provided, further, thatwaived on the Amendment No. 21 Effective Date, and notwithstanding clause (iv)(B) above, the other Term Loan Lenders (other than Wingspire) shall not be entitled to receive the Deferred July Payment shall not be paid if the prepayment in full of the Obligations occurs prior to August 31, 2024., and such amount shall not continue to accrue or be due, payable or owing to the other Term Loan Lenders (other than Wingspire) pursuant to this Section 2.06(f) or otherwise.
- 102 - 146576709v1146576709v15 (g) Stock Repurchase Exit Fee. The Borrowers shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, a non-refundable fee equal to: (i) if the Stock Repurchase Investment has not been received by the Parent by October 23, 2023, then on October 24, 2023 a non-refundable fee equal to $2,000,000; (ii) if the Stock Repurchase Investment has not been received by the Parent by October 30, 2023, then on October 31, 2023 a non-refundable fee equal to $10,000,000; (iii) if the Stock Repurchase Investment has not been received by the Parent by November 6, 2023 and each Monday thereafter, then on November 7, 2023 and each Tuesday thereafter (until such Stock Repurchase Investment has been received) a non-refundable fee equal to $1,000,000. Each such amount set forth in clauses (i), (ii) and (iii) above shall constitute, a “Stock Repurchase Exit Fee”, shall be deemed fully earned on, as applicable, October 24, 2023, October 31, 2023, November 7, 2023 and each Tuesday thereafter and shall be paid in cash on the earliest to occur of (A) the prepayment in full of the Obligations, (B) the Final Maturity Date and (C) the date on which the Obligations are declared due and payable pursuant to the terms of Section 9.01 of this Agreement. (h) Exit Fee. The Borrowers shall pay to the Administrative Agent, for the account of the Term Loan Lenders, in accordance with their Pro Rata Shares, a nonrefundable fee equal to 2.50% of the then outstanding principal amount of the Term Loans (the “Exit Fee”), which Exit Fee shall be deemed fully earned on the Amendment No. 21 Effective Date and payable in cash on the date that is the earliest to occur of (i) the prepayment in full of the Obligations, (ii) the Final Maturity Date and (iii) the date on which the Obligations are declared due and payable pursuant to the terms of Section 9.01 of this Agreement. (i) L/C Facility Ticking Fee. The Borrowers shall pay to the Administrative Agent, for the account of the Term Loan Lenders, a nonrefundable fee equal to 1.00% of the then outstanding principal amount of the Term Loans (each, a “L/C Facility Ticking Fee”), which L/C Facility Ticking Fee shall (A) (i) be deemed earned in full, non-refundable and due and payable on the date that is forty-five (45) days after the Amendment No. 21 Effective Date “in-kind” by adding such L/C Facility Ticking Fee to the then outstanding principal amount of the Term Loan B, if the L/C Facility Closing Date has not occurred by such date and (ii) be deemed earned in full, non-refundable and due and payable on the date that is ninety (90) days after the Amendment No. 21 Effective Date “in-kind” by adding such L/C Facility Ticking Fee to the then outstanding principal amount of the Term Loan B, if the L/C Facility Closing Date has not occurred by such date and (B) thereafter be treated as if it had originally been part of the outstanding principal amount of the Term Loan B. Section 2.07 SOFR Option. (a) The Administrative Borrower may, at any time and from time to time, so long as no Default or Event of Default has occurred and is continuing, elect to have interest on
- 103 - 146576709v1146576709v15 all or a portion of the Loans be charged at a rate of interest based upon the Adjusted Term SOFR (the “SOFR Option”) by notifying the Administrative Agent in writing prior to 11:00 a.m. (New York City time) at least 3 Business Days prior to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) in the case of the conversion of a Reference Rate Loan to a SOFR Loan, the commencement of the proposed Interest Period or (iii) in the case of the continuation of a SOFR Loan as a SOFR Loan, the last day of the then current Interest Period (the “SOFR Deadline”). Notice of the Administrative Borrower's election of the SOFR Option for a permitted portion of the Loans and an Interest Period pursuant to this Section 2.07(a) shall be made by delivery to the Administrative Agent of (A) a Notice of Borrowing (in the case of the initial making of a Loan) in accordance with Section 2.02 or (B) a SOFR Notice prior to the SOFR Deadline; provided that, election of the SOFR Option with a 3-month Interest Period shall be automatically deemed made for all Loans on each SOFR Deadline for each Interest Period occurring in the Fiscal Years ending December 31, 2020 and December 31, 2021. Promptly upon its receipt of each such SOFR Notice, the Administrative Agent shall notify each of the Lenders thereof. Each SOFR Notice shall be irrevocable and binding on the Borrowers. (b) Interest on SOFR Loans shall be payable in accordance with Section 2.04(d). On the last day of each applicable Interest Period, unless the Administrative Borrower properly have exercised the SOFR Option with respect thereto, the interest rate applicable to such SOFR Loans automatically shall convert to the rate of interest then applicable to Reference Rate Loans of the same type hereunder. If the Administrative Borrower submits a timely SOFR Notice, but fails to specify an Interest Period, the Administrative Borrower shall be deemed to have elected an Interest Period of one month's duration. At any time that a Default or an Event of Default has occurred and is continuing, the Administrative Borrower no longer shall have the option to request that any portion of the Loans bear interest at the Adjusted Term SOFR and the Administrative Agent shall have the right to convert the interest rate on all outstanding SOFR Loans to the rate of interest then applicable to Reference Rate Loans of the same type hereunder prior to the last day of the then current Interest Period. (c) Notwithstanding anything to the contrary contained in this Agreement, the Borrowers (i) shall have not more than 5 SOFR Loans in effect at any given time, and (ii) only may exercise the SOFR Option for SOFR Loans of at least $500,000 and integral multiples of $100,000 in excess thereof. (d) The Borrowers may prepay SOFR Loans at any time; provided, however, that in the event that SOFR Loans are prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment pursuant to Section 2.05(c) or any application of payments or proceeds of Collateral in accordance with Section 4.03 or Section 4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, the Borrowers shall indemnify, defend, and hold the Agents and the Lenders and their participants harmless against any and all Funding Losses in accordance with Section 2.08. (e) In connection with the use or administration of Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or
- 104 - 146576709v1146576709v15 consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Administrative Borrower, the Revolving Agent and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR. Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is required match fund any Obligation as to which interest accrues at Adjusted Term SOFR or the Term SOFR Reference Rate. (f) Subject to clause (g), if, on or prior to the first day of any Interest Period for any SOFR Loan: (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 Term Loan Lenders (with respect to the Term Loans) or the Required Revolving Loan Lenders (with respect to the Revolving Loans) 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 Term Loan Lenders (with respect to the Term Loans) or the Required Revolving Loan Lenders (with respect to the Revolving Loans) have provided notice of such determination to the Administrative Agent, the Administrative Agent will promptly so notify the Administrative Borrower, the Revolving Agent and each Lender. Upon notice thereof by the Administrative Agent to the Administrative Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Administrative Borrower to continue SOFR Loans or to convert Reference Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Term Loan Lenders (with respect to the Term Loans) or the Required Revolving Loan Lenders (with respect to the Revolving Loans)) revokes such notice. Upon receipt of such notice, (i) the Administrative 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 affected Interest Periods) or, failing that, the Administrative Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Reference Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Reference Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Administrative Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.08. Subject to Section 2.07(g), 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 on any given day, the interest rate on Reference Rate Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Reference Rate” until the Administrative Agent revokes such determination.
- 105 - 146576709v1146576709v15 (g) Benchmark Replacement. (i) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Administrative Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to the Revolving Agent and all affected Lenders and the Administrative Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.07(g)(i) will occur prior to the applicable Benchmark Transition Start Date. No swap agreement shall be deemed to be a “Loan Document” for purposes of this Section 2.07(g). (ii) 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) The Administrative Agent will promptly notify the Administrative Borrower, the Revolving Agent 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 Administrative Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.07(g)(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 2.07(g), 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 2.07(g). (iv) 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 the 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
- 106 - 146576709v1146576709v15 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) Upon the Administrative Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Administrative 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, the Administrative Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Reference Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Reference Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Reference Rate. Section 2.08 Funding Losses. 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 a Default or an Event of Default or any mandatory prepayment required pursuant to Section 2.05(c)), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an Event of Default), or (c) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, then, in any such event, the Borrowers shall compensate each Lender for any loss, cost and expense (“Funding Losses”) 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 2.08 shall be delivered to the Administrative Borrower and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof. Section 2.09 Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made without deduction or withholding for any and all Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of any Withholding Agent) requires the deduction or withholding of any Taxes from or in respect of any such payment, (i) the applicable Withholding Agent shall make such deduction or withholding, (ii) the applicable Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased by the amount (an “Additional Amount”) necessary such that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 2.09) the applicable Recipient receives the amount equal to the sum it would have received had no such deduction or withholding been made.
- 107 - 146576709v1146576709v15 (b) In addition, each Loan Party shall pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes by any Secured Party. (c) The Loan Parties hereby jointly and severally indemnify and agree to hold each Secured Party harmless from and against Indemnified Taxes (including, without limitation, Indemnified Taxes imposed on any amounts payable under this Section 2.09) paid or payable by such Secured Party or required to be withheld or deducted from a payment to such Secured Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. Such indemnification shall be paid within 10 days from the date on which any such Person makes written demand therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes. A certificate as to the amount of such payment or liability delivered to the Administrative Borrower by a Secured Party (with a copy to the Administrative Agent) or by the Administrative Agent on its own behalf or on behalf of another Secured Party shall be conclusive absent manifest error. (d) As soon as practicable after any payment of Taxes by a Loan Party to a Governmental Authority pursuant to this Section 2.09, such Loan Party or the Administrative Borrower shall 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. (e) (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 Administrative Borrower and the Administrative Agent, at the time or times reasonably requested by the Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Administrative 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 Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Administrative Borrower or the Administrative Agent as will enable the Administrative 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 Section 2.09(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if 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 the Borrowers are U.S. Borrowers, (A) any Recipient that is a U.S. Person shall deliver to the Administrative Borrower and the Administrative Agent on or prior to the date on which such
- 108 - 146576709v1146576709v15 Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Recipient is exempt from U.S. federal backup withholding tax; (B) any Lender that is not a U.S. Person (a “Foreign Lender”) shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower and the Administrative Agent (in such number of copies as shall be reasonably 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 Administrative 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 copies of IRS Form W-8BEN or W-8BEN-E 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 W-8BEN-E 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 Internal Revenue Code, (x) a certificate substantially in the form of Exhibit 2.09(e)-1 hereto to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Administrative Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; 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 W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.09(e)-2 or Exhibit 2.09(e)-3, IRS Form W-9, 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 2.09(e)-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 Administrative Borrower and the Administrative Agent (in such number of copies as shall be reasonably 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 Administrative Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming
- 109 - 146576709v1146576709v15 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 Administrative 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 Internal Revenue Code, as applicable), such Lender shall deliver to the Administrative Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Administrative Borrower or the Administrative Agent as may be necessary for the Administrative 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. Each Recipient 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 each Agent in writing of its legal inability to do so. (f) Each Lender shall severally indemnify each Agent, within 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 such 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 12.07(i) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by such 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 applicable Agent shall be conclusive absent manifest error. Each Lender hereby authorizes each 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 such Agent to the Lender from any other source against any amount due to such Agent under this paragraph (e). (g) 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 2.09 (including by the payment of additional amounts pursuant to this Section 2.09), 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 2.09 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
- 110 - 146576709v1146576709v15 such indemnified party the amount paid over pursuant to this paragraph (f) (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 paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (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) Each Agent agrees to file (or arrange for its administrative services provider to file) IRS Form 1042-S (or similar form as at any relevant time in effect), if applicable, with respect to payments it makes to the Lenders under the Loan Documents. (i) Each party's obligations under this Section 2.09 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. Section 2.10 Increased Costs and Reduced Return. (a) If any Secured Party shall have reasonably determined that any Change in Law shall (i) subject such Secured Party, or any Person controlling such Secured Party to any tax, duty or other charge with respect to this Agreement or any Loan made by such Secured Party (except for (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded Taxes and (C) Connection Income Taxes), (ii) 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 or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, such Secured Party or any Person controlling such Secured Party or (iii) impose on such Secured Party or any Person controlling such Secured Party any other condition (other than Taxes) regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Secured Party of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by such Secured Party hereunder, then, upon demand by such Secured Party, the Borrowers shall pay to such Secured Party such additional amounts as will compensate such Secured Party for such increased costs or reductions in amount. (b) If any Secured Party shall have determined that any Change in Law either (i) affects or would affect the amount of capital required or expected to be maintained by such Secured Party or any Person controlling such Secured Party, and such Secured Party determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, such Secured Party's or such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on such Secured
- 111 - 146576709v1146576709v15 Party's or such other controlling Person's capital to a level below that which such Secured Party or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained, or any agreement to make Loans, or such Secured Party's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Secured Party's or such other controlling Person's policies with respect to capital adequacy), then, upon demand by such Secured Party, the Borrowers shall pay to such Secured Party from time to time such additional amounts as will compensate such Secured Party for such cost of maintaining such increased capital or such reduction in the rate of return on such Secured Party's or such other controlling Person's capital. (c) All amounts payable under this Section 2.10 shall bear interest from the date that is 10 days after the date of demand by any Secured Party until payment in full to such Secured Party at the Reference Rate. A certificate of such Secured Party claiming compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted by such Secured Party to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Secured Party's reasons for invoking the provisions of this Section 2.10, and shall be final and conclusive absent manifest error. (d) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10 shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 2.10 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine- month period referred to above shall be extended to include the period of retroactive effect thereof). (e) The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. Section 2.11 Changes in Law; Impracticability or Illegality. (a) Adjusted Term SOFR may be adjusted by the Administrative Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of increased costs due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), which additional or increased costs would increase the cost of funding loans bearing interest at Adjusted Term SOFR. In any such event, the affected Lender shall give the Administrative Borrower and the Administrative Agent notice of such a determination and adjustment and the Administrative Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, the Administrative Borrower may,
- 112 - 146576709v1146576709v15 by notice to such affected Lender (i) require such Lender to furnish to the Administrative Borrower a statement setting forth the basis for adjusting such Adjusted Term SOFR and the method for determining the amount of such adjustment, or (ii) repay the SOFR Loans with respect to which such adjustment is made (together with any amounts due under Section 2.09). (b) If any Lender determines that any Requirement of Law applicable to such Lender 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, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge interest based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Administrative Borrower (through the Administrative Agent) (an “Illegality Notice”), (a) any obligation of the Lenders to make SOFR Loans, and any right of the Borrowers to continue SOFR Loans or to convert Reference Rate Loans to SOFR Loans, shall be suspended, and (b) the interest rate on which Reference Rate Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “Reference Rate”, in each case until each affected Lender notifies the Administrative Agent and the Administrative Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of an Illegality Notice, the Borrowers 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 Reference Rate Loans (the interest rate on which Reference Rate Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “Reference Rate”), 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 SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.08. (c) The obligations of the Loan Parties under this Section 2.11 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. Section 2.12 Mitigation Obligations; Replacement of Lenders. (a) If any Lender requires the Borrowers to pay any Additional Amounts under Section 2.09 or requests compensation under Section 2.10, then such Lender shall (at the request of the Administrative Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to such Section 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. The Borrowers hereby agree to pay
- 113 - 146576709v1146576709v15 all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. (b) If any Lender requires the Borrowers to pay any Additional Amounts under Section 2.09 or requests compensation under Section 2.10 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with clause (a) above, or if any Lender is a Defaulting Lender, then the Administrative Borrower may, at its sole expense and effort, upon notice to such Lender and the Agents, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.07), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that: (i) the Borrowers shall have paid to the Agents any assignment fees specified in Section 12.07; (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.08 and Section 2.09) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts); (iii) in the case of any such assignment resulting from payments required to be made pursuant to Section 2.09 or a claim for compensation under Section 2.10, such assignment will result in a reduction in such compensation or payments thereafter; and (iv) such assignment does not conflict with applicable law. Prior to the effective date of such assignment, the assigning Lender shall execute and deliver an Assignment and Acceptance, subject only to the conditions set forth above. If the assigning Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such assignment, the assigning Lender shall be deemed to have executed and delivered such Assignment and Acceptance. Any such assignment shall be made in accordance with the terms of Section 12.07. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Administrative Borrower to require such assignment and delegation cease to apply. Section 2.13 Incremental Term Loan. (a) At any time during the period from the Amendment No. 9 Effective Date until the date that is the twelve (12) month anniversary of the Amendment No. 9 Effective Date, at the option of the Borrowers (but subject to the conditions set forth in clause (b) below), the Total Term Loan A Commitments may be increased by an aggregate amount not to exceed $20,000,000 (such increase, the “Incremental Term Loan A Commitments”). The Administrative Agent shall invite each Term Loan A Lender to increase its Term Loan A Commitment (it being understood that no Term Loan A Lender shall be obligated to increase its
- 114 - 146576709v1146576709v15 Term Loan A Commitment) in connection with the proposed Incremental Term Loan A Commitments, and if sufficient Lenders do not agree to increase their Term Loan A Commitments in connection with such proposed Incremental Term Loan A Commitments, then the Term Loan A Commitments shall be increased only by the amount of Incremental Term Loan A Commitments agreed to by the Term Loan A Lenders (if any). The aggregate Incremental Term Loan A Commitments shall be in an amount of at least $5,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Total Term Loan A Commitment be increased pursuant to this Section 2.13 on more than one occasion. (b) Each of the following shall be conditions precedent to the Incremental Term Loan A Commitments and the making of the additional portion of the Term Loan A (the “Incremental Term Loan A”) in connection therewith (it being understood that no Term Loan A Lender shall be obligated to increase its Term Loan A Commitment notwithstanding the satisfaction of the following conditions precedent): (i) the Administrative Agent shall have obtained the commitment of one or more Term Loan A Lenders to provide the Incremental Term Loan A Commitments and any such Term Loan A Lenders, each Loan Party and each Agent shall have signed a joinder agreement to this Agreement (an “Incremental Joinder”), in form and substance reasonably satisfactory to the Agents; (ii) each of the conditions precedent set forth in Section 5.02 shall have been satisfied prior to the making of the Incremental Term Loan A; (iii) the proceeds of the Incremental Term Loan A shall be used solely to fund Permitted Acquisitions; and (iv) the Borrowers shall pay to the Administrative Agent for the benefit of the Lenders providing the Incremental Term Loan A, a non-refundable closing fee equal to the amount of 2.00% of the amount of each Incremental Term Loan A, with each such fee being fully earned and due and payable to the Administrative Agent on the date that each such Incremental Term Loan A is made. (c) Any Incremental Joinder may, with the consent of the Agents, the Administrative Borrower and the Term Loan A Lenders agreeing to the proposed Incremental Term Loan A Commitments, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.13. (d) Unless otherwise specifically provided herein, (i) all references in this Agreement and any other Loan Document to the Term Loan A and Term Loans shall be deemed, unless the context otherwise requires, to include the Incremental Term Loan A made pursuant to the Incremental Term Loan A Commitments pursuant to this Section 2.13. (e) The Incremental Term Loan A (and all interest, fees and other amounts payable thereon) (i) shall be Term Loans under this Agreement and the other Loan Documents, (ii) shall be on the same terms as the initial Term Loans (including, without limitation, the Applicable Margin, Applicable Premium and Final Maturity Date applicable to such initial Term
- 115 - 146576709v1146576709v15 Loans) and (iii) shall share ratably in the right of repayment and prepayment with the initial Term Loans pursuant to Section 2.03 and Section 2.05. (f) The Incremental Term Loan A Commitments and Incremental Term Loan A established pursuant to this Section 2.13 shall constitute a Term Loan Commitment and a Term Loan 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 Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of the Incremental Term Loan A Commitments and the Incremental Term Loan A. ARTICLE III [INTENTIONALLY OMITTED] ARTICLE IV APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF BORROWERS Section 4.01 Payments; Computations and Statements. (a) The Borrowers will make each payment under this Agreement not later than 12:00 noon (New York City time) on the day when due, in lawful money of the United States of America and in immediately available funds, to the Administrative Agent's Account or the Revolving Agent’s Account, as applicable. All payments received by the Administrative Agent or the Revolving Agent after 12:00 noon (New York City time) on any Business Day may, at the Administrative Agent’s or the Revolving Agent’s discretion, be credited to the Loan Account on the next succeeding Business Day. All payments shall be made by the Borrowers without set-off, counterclaim, recoupment, deduction or other defense to the Agents and the Lenders. Except as provided in Section 2.02, after receipt, the Administrative Agent (with respect to the Term Loans) and the Revolving Agent (with respect to the Revolving Loans) will promptly thereafter cause to be distributed like funds relating to the payment of principal ratably to the Lenders in accordance with their Pro Rata Shares and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement, provided, that the Administrative Agent will cause to be distributed all interest and fees received from or for the account of the Borrowers not less than once each month and in any event promptly after receipt thereof. Whenever any payment to be made under any such Loan Document shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall in such case be included in the computation of interest or fees, as the case may be. All computations of fees shall be made by the Administrative Agent (with respect to the Term Loans) and the Revolving Agent (with respect to the Revolving Loans) on the basis of a year of 360 days for the actual number of days. Each determination by the Administrative Agent (with respect to the Term Loans) or the Revolving Agent (with respect to the Revolving Loans) of an
- 116 - 146576709v1146576709v15 interest rate or fees hereunder shall be conclusive and binding for all purposes in the absence of manifest error. (b) The Administrative Agent (with respect to the Term Loans) and the Revolving Agent (with respect to the Revolving Loans) shall provide the Administrative Borrower (and, in the case of the Administrative Agent, with a copy to the Revolving Agent, and in the case of the Revolving Agent, with a copy to the Administrative Agent), on or about the end of each calendar month for which there was activity with respect to the Loan Account, a summary statement (in the form from time to time used by the applicable Agent) of the opening and closing daily balances in the applicable Loan Account of the Borrowers during such month, the amounts and dates of all Loans made to the Borrowers during such month, the amounts and dates of all payments on account of the Loans to the Borrowers during such month and the Loans to which such payments were applied, the amount of interest accrued on the Loans to the Borrowers during such month, and the amount and nature of any charges to the Loan Accounts made during such month on account of fees, commissions, expenses and other Obligations. All entries on any such statement shall be presumed to be correct and, 30 days after the same is sent, shall be final and conclusive absent manifest error. Section 4.02 Sharing of Payments. Except as provided in Section 2.02 hereof, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that (a) if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender's ratable share (according to the proportion of (i) the amount of such Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid by the purchasing Lender in respect of the total amount so recovered and (b) the provisions of this Section shall not be construed to apply to (i) any payment made by the Borrowers 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 and any payment of an amendment, consent or waiver fee to consenting Lenders pursuant to an effective amendment, consent or waiver with respect to this Agreement), or (ii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, other than to any Loan Party or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all of its rights (including the Lender's right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation. Section 4.03 Apportionment of Payments. Subject to Section 2.02 hereof: (a) All payments of principal and interest in respect of outstanding Loans, all payments of fees and all other payments in respect of any other Obligations, shall be allocated by
- 117 - 146576709v1146576709v15 the Agents among such of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of Loans, as designated by the Person making payment when the payment is made. (b) After the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the direction of the Required Lenders (or upon the acceleration of the Obligations in accordance with Section 9.01 or the occurrence of an Event of Default under Section 9.01(a) on the Final Maturity Date) shall, apply all payments in respect of any Obligations, including without limitation, all proceeds of the Collateral, subject to the provisions of this Agreement, (i) first, ratably to pay the Obligations in respect of any fees (other than any Stock Repurchase Exit Fee), expense reimbursements, indemnities and other amounts then due and payable to the Agents until paid in full; (ii) second, to pay interest then due and payable in respect of the Agent Advances until paid in full; (iii) third, to pay principal of the Agent Advances until paid in full; (iv) fourth, ratably to pay the Revolving Loan Obligations in respect of any fees (other than any Applicable Premium or any Stock Repurchase Exit Fee), expense reimbursements, indemnities and other amounts then due and payable to the Revolving Loan Lenders until paid in full; (v) fifth, ratably to pay interest then due and payable in respect of the Revolving Loans until paid in full; (vi) sixth, ratably to pay principal of the Revolving Loans until paid in full; (vii) seventh, ratably to pay the Term Loan Obligations in respect of any fees (other than any Applicable Premium or any Stock Repurchase Exit Fee), expense reimbursements, indemnities and other amounts then due and payable to the Term Loan Lenders until paid in full; (viii) eighth, ratably to pay interest then due and payable in respect of the Term Loan until paid in full; (ix) ninth, ratably to pay principal of the Term Loan (including the PIK Amount) until paid in full; (x) tenth, ratably to pay any Stock Repurchase Exist Fee owing to the Revolving Loan Lenders and the Term Loan Lenders until paid in full; (xi) eleventh, ratably to pay the Obligations in respect of any Applicable Premium then due and payable to the Lenders until paid in full; and (xii) twelfth, to the ratable payment of all other Obligations then due and payable until paid in full. (c) For purposes of Section 4.03(b) (other than clause (xi) thereof), “paid in full” means payment in cash of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (xi), “paid in full” means payment in cash of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. (d) In the event of a direct conflict between the priority provisions of this Section 4.03 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together and
- 118 - 146576709v1146576709v15 construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of Section 4.03 shall control and govern. Section 4.04 Defaulting Lenders. 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: (a) 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 12.02. (b) The Administrative Agent and the Revolving Agent shall not be obligated to transfer to such Defaulting Lender any payments made by any Borrower to the Administrative Agent or the Revolving Agent for such Defaulting Lender's benefit, and, in the absence of such transfer to such Defaulting Lender, the Administrative Agent or the Revolving Agent shall transfer any such payments to each other non-Defaulting Lender ratably in accordance with their Pro Rata Shares (without giving effect to the Pro Rata Shares of such Defaulting Lender) (but only to the extent that such Defaulting Lender's Loans were funded by the other Lenders) or, if so directed by the Administrative Borrower and if no Default or Event of Default has occurred and is continuing (and to the extent such Defaulting Lender's Loans were not funded by the other Lenders), retain the same to be re-advanced to the Borrowers as if such Defaulting Lender had made such Loans to the Borrowers. Subject to the foregoing, the Administrative Agent and the Revolving Agent may hold and, in its discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by the Administrative Agent or the Revolving Agent for the account of such Defaulting Lender. (c) Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers to replace the Defaulting Lender with one or more substitute Lenders, and the Defaulting Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Defaulting Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Defaulting Lender shall be made in accordance with the terms of Section 12.07. (d) The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to the Agents or to the Lenders other than such Defaulting Lender.
- 119 - 146576709v1146576709v15 (e) This Section shall remain effective with respect to such Lender until either (i) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (ii) the non-Defaulting Lenders, the Agents, and the Borrowers shall have waived such Defaulting Lender's default in writing, and the Defaulting Lender makes its Pro Rata Share of the applicable defaulted Loans and pays to the applicable Agent all amounts owing by such Defaulting Lender in respect thereof; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender's having been a Defaulting Lender. Section 4.05 Administrative Borrower; Joint and Several Liability of the Borrowers. (a) Each Borrower hereby irrevocably appoints Mondee as the borrowing agent and attorney-in-fact for the Borrowers (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and until the Agents shall have received prior written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide to the Agents and receive from the Agents all notices with respect to Loans obtained for the benefit of any Borrower and all other notices and instructions under this Agreement and (ii) to take such action as the Administrative Borrower deems appropriate on its behalf to obtain Loans and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement. It is understood that the handling of the Loan Accounts and Collateral of the Borrowers in a combined fashion, as more fully set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most efficient and economical manner and at their request, and that neither the Agents nor the Lenders shall incur liability to the Borrowers as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the handling of the Loan Accounts and the Collateral in a combined fashion since the successful operation of each Borrower is dependent on the continued successful performance of the integrated group. (b) Each Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this Section 4.05), it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such
- 120 - 146576709v1146576709v15 event, the other Borrowers will make such payment with respect to, or perform, such Obligation. Subject to the terms and conditions hereof, the Obligations of each of the Borrowers under the provisions of this Section 4.05 constitute the absolute and unconditional, full recourse Obligations of each of the Borrowers, enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement, the other Loan Documents or any other circumstances whatsoever. (c) The provisions of this Section 4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies available to it or them against any of the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 4.05 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. (d) Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Agents or the Lenders with respect to any of the Obligations or any Collateral, until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations. ARTICLE V CONDITIONS TO LOANS Section 5.01 Conditions Precedent to Effectiveness. This Agreement shall become effective as of the Business Day (the “Effective Date”) when each of the following conditions precedent shall have been satisfied in a manner satisfactory to the Administrative Agent: (a) Payment of Fees, Etc. The Borrowers shall have paid on or before the Effective Date all fees, costs, expenses and taxes then payable pursuant to Section 2.06 and Section 12.04. (b) Representations and Warranties; No Event of Default. The following statements shall be true and correct: (i) the representations and warranties contained in Article VI and in each other Loan Document, certificate or other writing delivered to any Secured Party pursuant hereto or thereto on or prior to the Effective Date are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects
- 121 - 146576709v1146576709v15 subject to such qualification) on and as of the Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date) and (ii) no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms. (c) Legality. The making of the initial Loans shall not contravene any law, rule or regulation applicable to any Secured Party. (d) Delivery of Documents. The Administrative Agent shall have received on or before the Effective Date the following, each in form and substance satisfactory to the Administrative Agent and, unless indicated otherwise, dated the Effective Date and, if applicable, duly executed by the Persons party thereto: (i) each Security Agreement (including the Canadian Security Agreement), together with the original stock certificates representing all of the Equity Interests and all promissory notes required to be pledged thereunder, accompanied by undated stock powers executed in blank and other proper instruments of transfer; (ii) a UCC Filing Authorization Letter, together with evidence satisfactory to the Administrative Agent of the filing of appropriate financing statements on Form UCC 1 and each applicable PPSA form or other applicable filings in respect of the Canadian Collateral, in each case, in such office or offices as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interests purported to be created by each Security Agreement and each Mortgage; (iii) the results of searches for any effective UCC financing statements, tax Liens or judgment Liens filed against any Loan Party or its property, which results shall not show any such Liens (other than Permitted Liens); (iv) a Perfection Certificate; (v) the Disbursement Letter; (vi) the Intercompany Subordination Agreement; (vii) the Falcon Acquisition Collateral Assignment; (viii) with respect to each Facility owned by a Loan Party and each leasehold facility either requiring the payment of annual rent exceeding in the aggregate $1,000,000 or which is listed in Schedule III of the Security Agreement as a chief executive office, each of the Real Property Deliverables;
- 122 - 146576709v1146576709v15 (ix) a certificate of an Authorized Officer of each Loan Party, certifying (A) as to copies of the Governing Documents of such Loan Party, together with all amendments thereto (including, without limitation, a true and complete copy of the charter, certificate of formation, certificate of limited partnership or other publicly filed organizational document of each Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the jurisdiction of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of such Loan Party, if an organizational number is issued in such jurisdiction), (B) as to a copy of the resolutions or written consents of such Loan Party authorizing (1) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (2) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith, and (C) the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document (in the case of a Borrower, including, without limitation, Notices of Borrowing, SOFR Notices and all other notices under this Agreement and the other Loan Documents) to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers; (x) a certificate of the chief financial officer of the Parent attaching a copy of the Financial Statements and the Projections described in Section 6.01(g)(ii) hereof and certifying as to the compliance with the representations and warranties set forth in Section 6.01(g)(i) and Section 6.01(bb)(ii); (xi) a certificate of the chief financial officer of the Parent and Mondee, certifying as to the solvency of each Loan Party (after giving effect to the Loans made on the Effective Date) and as to the matters set forth in Section 5.01(b); (xii) a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Effective Date as to the subsistence in good standing of such Loan Party in such jurisdictions, together with written confirmation (where available) on the Effective Date from such official(s) as to such matters; (xiii) a certificate of an Authorized Officer of the Administrative Borrower certifying that (A) the attached copies of (1) the Falcon Acquisition Documents and (2) the other Material Contracts as in effect on the Effective Date are true, complete and correct copies thereof and (B) such agreements remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements; (xiv) an opinion of Pillsbury Winthrop Shaw Pittman LLP, counsel to the Loan Parties, and an opinion of local counsel reasonably acceptable to the Administrative Agent in each applicable jurisdiction of the Loan Parties, in each case, as to such matters as the Administrative Agent may reasonably request;
- 123 - 146576709v1146576709v15 (xv) evidence of the payment in full of all Indebtedness under the Existing Credit Facilities, together with (A) a termination and release agreement with respect to the Existing Credit Facilities and all related documents, duly executed by the Loan Parties and the Existing Lenders, (B) a satisfaction of mortgage for each mortgage filed by the Existing Lender on each Facility (if any), (C) a termination of security interest in Intellectual Property for each assignment for security recorded by the Existing Lenders at the United States Patent and Trademark Office or the United States Copyright Office or the Canadian Intellectual Property Office and covering any intellectual property of the Loan Parties, and (D) UCC 3 termination statements for all UCC-1 financing statements and other applicable termination statements in applicable jurisdictions, in each case, filed by the Existing Lenders and covering any portion of the Collateral; (xvi) [reserved]; and (xvii) such other agreements, instruments, approvals, opinions and other documents, each satisfactory to the Administrative Agent in form and substance, as the Administrative Agent may reasonably request. (e) Material Adverse Effect. The Administrative Agent shall have determined that no event or development shall have occurred since December 31, 2018 which could reasonably be expected to have a Material Adverse Effect. (f) KYC. The Administrative Agent and the Lenders shall have each received (to the extent requested at least 5 Business Days prior to the Effective Date), at least 2 Business Days in advance of the Effective Date, (i) a W-9 and all documentation and other information required by regulatory authorities with respect to the Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, and (ii) a Beneficial Ownership Certification with respect to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation. (g) Approvals. All consents, authorizations and approvals of, and filings and registrations with, and all other actions in respect of, any Governmental Authority or other Person required in connection with the making of the Loans or the conduct of the Loan Parties' business shall have been obtained and shall be in full force and effect. (h) No Litigation. There shall exist no claim, action, suit, investigation, litigation or proceeding (including, without limitation, shareholder or derivative litigation), pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority which (i) relates to the making of the Loans or (ii) could reasonably be expected to have a Material Adverse Effect. (i) Proceedings; Receipt of Documents. All proceedings in connection with the making of the initial Loans and the other transactions contemplated by this Agreement and the other Loan Documents, and all documents incidental hereto and thereto, shall be satisfactory to the Administrative Agent and its counsel, and the Administrative Agent and such counsel shall have received all such information and such counterpart originals or certified or other copies of such documents as the Administrative Agent or such counsel may reasonably request.
- 124 - 146576709v1146576709v15 (j) Consummation of Falcon Acquisition. Prior to the Effective Date, (i) Mondee shall have purchased pursuant to the Falcon Acquisition Documents (no provision of which shall have been amended or otherwise modified or waived without the prior written consent of the Administrative Agent), and shall have become the owner, free and clear of all Liens other than Permitted Liens, of all of the Falcon Acquisition Assets and (ii) each of the parties to the Falcon Acquisition Documents shall have fully performed all of the obligations to be performed by it under the Falcon Acquisition Documents. (k) Indebtedness, Consolidated EBITDA and Liquidity. The Administrative Agent shall have received a certificate of an Authorized Officer of the Administrative Borrower certifying that (i) the Leverage Ratio of the Parent and its Subsidiaries (calculated on a pro forma basis to give effect to all Loans made on the Effective Date and using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the 12 month period ending October 31, 2019) is not greater than 3.80 to 1.00, (ii) the Consolidated EBITDA of the Parent and its Subsidiaries for the 12 month period ending October 31, 2019 is not less than $25,000,000, and (iii) Liquidity (calculated on a pro forma basis to give effect to all Loans made on the Effective Date and the payment of all fees, costs and expenses incurred in connection with the transactions contemplated hereby) is not less than $20,000,000, which certificate shall be accompanied or preceded by reasonably detailed calculations of the foregoing amounts. (l) Notice of Borrowing. The Administrative Agent shall receive a duly executed Notice of Borrowing pursuant to Section 2.02 hereof. Section 5.02 Conditions Precedent to All Loans. The obligation of any Agent or any Lender to make any Loan after the Effective Date is subject to the fulfillment, in a manner satisfactory to the Agents, of each of the following conditions precedent: (a) Payment of Fees, Etc. The Borrowers shall have paid all fees, costs, expenses and taxes then payable by the Borrowers pursuant to this Agreement and the other Loan Documents, including, without limitation, Section 2.06 and Section 12.04 hereof. (b) Representations and Warranties; No Event of Default. The following statements shall be true and correct, and the submission by the Administrative Borrower to the Agents of a Notice of Borrowing with respect to each such Loan, and the Borrowers' acceptance of the proceeds of such Loan, shall each be deemed to be a representation and warranty by each Loan Party on the date of such Loan that: (i) the representations and warranties contained in Article VI and in each other Loan Document, certificate or other writing delivered to any Secured Party pursuant hereto or thereto on or prior to the date of such Loan are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct on and as of such earlier date), (ii) at the time of and after giving effect to the making of such Loan and the application of the proceeds thereof, no Default or Event of Default has occurred
- 125 - 146576709v1146576709v15 and is continuing or would result from the making of the Loan to be made on such date and (iii) the conditions set forth in this Section 5.02 have been satisfied as of the date of such request. (c) Notice of Borrowing. The applicable Agent shall have received a Notice of Borrowing pursuant to Section 2.02 hereof (and, in the case of any Notice of Borrowing with respect to a Revolving Loan, the Revolving Agent shall have approved (in its sole discretion) the funding of such Revolving Loan), provided that Revolving Loans shall be subject to Section 7 of Amendment No. 11. (d) Officer's Certificate. (i) With respect to any Incremental Term Loan A, the applicable Agent shall have received a certificate of an Authorized Officer of the Administrative Borrower (i) certifying that (A) the Loan Parties are in compliance with the financial covenants set forth in Section 7.03 on a pro forma basis as of the last day of the last Fiscal Quarter for which financial statements of the Parent and its Subsidiaries have been delivered under Section 7.01(a)(ii) after giving effect to such Loan (as if such Loan were made on the first day of such period) and after the funding of such Incremental Term Loan A, (B) on a pro forma basis, the Consolidated EBITDA of the Parent and its Subsidiaries for the 12 month period ending on the last day of the month immediately preceding the funding date of such Incremental Term Loan A is not less than $25,000,000 and (C) Qualified Cash (minus the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables) (calculated on a pro forma basis to give effect to such Incremental Term Loan A and the payment of all fees incurred in connection therewith) is not less than $25,000,000, and (ii) attaching reasonably detailed calculations evidencing compliance by the Borrowers with the certifications set forth in clauses (i)(A), (i)(B) and (i)(C) above. (ii) [Reserved]. (e) [Reserved]. (f) Legality. The making of such Loan shall not contravene any law, rule or regulation applicable to any Secured Party. (g) Proceedings; Receipt of Documents. All proceedings in connection with the making of such Loan and the other transactions contemplated by this Agreement and the other Loan Documents, and all documents incidental hereto and thereto, shall be satisfactory to each Agent and its counsel, and such Agent and such counsel shall have received such other agreements, instruments, approvals, opinions and other documents, each in form and substance satisfactory to such Agent, as such Agent may reasonably request. Notwithstanding the foregoing, (i) the obligations of the Amendment No. 21 Term Loan Lenders to fund the Amendment No. 21 Term Loans shall not be subject to the fulfillment of the conditions precedent set forth above in this Section 5.02 or any other conditions precedent other than (A) in the case of the Amendment No. 21 Term Loan #1, the occurrence of the Amendment No. 21 Effective Date and (B) in the case of the Amendment No. 21 Term Loan #2, (1) evidence satisfactory to the Agents of the filing (with the Secretary of State of the State of Delaware) and effectiveness of the Preferred COD (in the form delivered to the Agents and the Lenders on the
- 126 - 146576709v1146576709v15 Amendment No. 21 Effective Date), (2) the occurrence of the L/C Facility Closing Date and (3) no Event of Default shall have occurred and be continuing under Section 9.01(c) as a result of the failure of any Loan Party to comply with any term or provision under Section 7.02 as of the date such Loan is to be made, (ii) the Amendment No. 21 Term Loan #1 shall be automatically drawn and funded upon the Amendment No. 21 Effective Date and (iii) subject to subclause (B) above, the Amendment No. 21 Term Loan #2 shall be automatically drawn and funded upon the L/C Facility Closing Date. The Amendment No. 21 Term Loan #2, when made, shall be a SOFR Loan with an Interest Period ending on the same date as the then outstanding Term Loan B on the L/C Facility Closing Date. Section 5.03 Conditions Subsequent to Effectiveness. As an accommodation to the Loan Parties, the Administrative Agent and the Lenders have agreed to execute this Agreement and to make the Loans on the Effective Date notwithstanding the failure by the Loan Parties to satisfy the conditions set forth below on or before the Effective Date. In consideration of such accommodation, the Loan Parties agree that, in addition to all other terms, conditions and provisions set forth in this Agreement and the other Loan Documents, including, without limitation, those conditions set forth in Section 5.01, the Loan Parties shall satisfy each of the conditions subsequent set forth below on or before the date applicable thereto (it being understood that (i) the failure by the Loan Parties to perform or cause to be performed any such condition subsequent on or before the date applicable thereto shall constitute an Event of Default and (ii) to the extent that the existence of any such condition subsequent would otherwise cause any representation, warranty or covenant in this Agreement or any other Loan Document to be breached, the Required Lenders hereby waive such breach for the period from the Effective Date until the date on which such condition subsequent is required to be fulfilled pursuant to this Section 5.03): (a) Within 10 Business Days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received evidence of the insurance coverage required by Section 7.01(h) and the terms of each Security Agreement and each Mortgage and such other insurance coverage with respect to the business and operations of the Loan Parties as the Administrative Agent may reasonably request, in each case, where requested by the Administrative Agent, with such endorsements as to the named insureds or loss payees thereunder as the Administrative Agent may request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days' prior written notice to the Administrative Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Administrative Agent may request; (b) (i) Within 20 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received evidence that the Liens listed as items 4, 5 and 6 on Schedule 7.02(a) have been discharged in full and (ii) within 60 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received a signed acknowledgment, in form and substance reasonably satisfactory to the Administrative Agent, from the Royal Bank of Canada with respect to the Liens listed as items 2 and 3 on Schedule 7.02(a);
- 127 - 146576709v1146576709v15 (c) Within 30 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received a certificate of the appropriate official(s) of the State of New York certifying as of a recent date as to the subsistence in good standing of Hari-World Travel Group, Inc. and C & H TRAVEL & TOURS, INC. in such jurisdiction; (d) Within 90 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received a landlord waiver, in form and substance satisfactory to the Administrative Agent and which may be included as a provision contained in the relevant Lease, executed by each landlord with respect to each of the Leases in respect of a Facility requiring the payment of annual rent exceeding in the aggregate $1,000,000 or set forth on Schedule III to the Security Agreement as a chief executive office; (e) Within 30 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received a collateral access agreement, in form and substance satisfactory to the Administrative Agent, executed by each Person who possesses Inventory of any Loan Party; (f) Within 90 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received all Control Agreements that, in the reasonable judgment of the Administrative Agent, are required for the Loan Parties to comply with the Loan Documents, each duly executed by, in addition to the applicable Loan Party, the applicable financial institution; (g) Within 60 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received evidence that Avanti Management, Inc. and Avia Travel Services Ltd. shall have been dissolved and, in each case, that their assets have been transferred to a Loan Party; (h) By no later than June 30, 2022 (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received evidence that Metaminds has become a wholly-owned Subsidiary of the Parent and, unless such Subsidiary constitutes an Immaterial Foreign Subsidiary, has been joined as a Loan Party pursuant to Section 7.01(b); provided that, Metaminds shall not be required to become a wholly-owned Subsidiary of the Parent if (i) the Administrative Agent has determined that the cost of Metaminds becoming a wholly-owned Subsidiary of the Parent exceeds the practical benefit to the Secured Parties afforded thereby and (ii) the Administrative Borrower shall have been granted an irrevocable option to purchase the Equity Interests of Metaminds, on terms and in form and substance reasonably satisfactory to the Administrative Agent, for a purchase price of not greater than $2,000,000, which option shall not expire at any time prior to the Termination Date; and (i) Within 270 days of the Effective Date (or such later date as may be permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall
- 128 - 146576709v1146576709v15 have received evidence that the Lien listed as item 1 on Schedule 7.02(a) has been discharged in full. ARTICLE VI REPRESENTATIONS AND WARRANTIES Section 6.01 Representations and Warranties. Each Loan Party hereby represents and warrants to the Secured Parties as of the Effective Date and as of each date on which such representations and warranties are required to be made under this Agreement or any other Loan Document as follows: (a) Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the state, province, territory or other jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect. (b) Authorization, Etc. The execution, delivery and performance by each Loan Party of each Loan Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene (A) any of its Governing Documents, (B) any applicable material Requirement of Law or (C) any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties, except, in the case of this clause (iv), to the extent where such contravention, default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect. (c) Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party other than filings and recordings with respect to Collateral to be made, or otherwise delivered to the Administrative Agent for filing or recordation, on the Effective Date. (d) Enforceability of Loan Documents. This Agreement is, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
- 129 - 146576709v1146576709v15 insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity. (e) Capitalization. On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of the Parent and each of its Subsidiaries and the issued and outstanding Equity Interests of the Parent and each of its Subsidiaries are as set forth on Schedule 6.01(e). All of the issued and outstanding shares of Equity Interests of the Parent and each of its Subsidiaries have been validly issued and are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. All Equity Interests of such Subsidiaries of the Parent are owned by the Parent free and clear of all Liens (other than Permitted Specified Liens). Except for the Warrants and as described on Schedule 6.01(e), there are no outstanding debt or equity securities of the Parent or any of its Subsidiaries and no outstanding obligations of the Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Parent or any of its Subsidiaries, or other obligations of the Parent or any of its Subsidiaries to issue, directly or indirectly, any shares of Equity Interests of the Parent or any of its Subsidiaries. (f) Litigation. Except as set forth in Schedule 6.01(f), there is no pending or, to the best knowledge of any Loan Party, threatened action, suit or proceeding affecting any Loan Party or any of its properties before any court or other Governmental Authority or any arbitrator that (i) if adversely determined, could reasonably be expected to have a Material Adverse Effect or (ii) relates to this Agreement or any other Loan Document or any transaction contemplated hereby or thereby. (g) Financial Statements. (i) The Financial Statements, copies of which have been delivered to the Administrative Agent and each Lender, fairly present the consolidated financial condition of the Parent and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of the Parent and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP. All material indebtedness and other liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases and other unusual forward or long- term commitments), direct or contingent, of the Parent and its Subsidiaries are set forth in the Financial Statements. Since the Amendment No. 2 Effective Date no event or development has occurred that has had or could reasonably be expected to have a Material Adverse Effect. (ii) The Parent has heretofore furnished to the Administrative Agent and each Lender (A) a pro forma quarterly Consolidated EBITDA calculation for the Parent and its Subsidiaries for the period from the Effective Date through December 31, 2023, and (B) projected monthly balance sheets, income statements and statements of cash flows of the Parent and its Subsidiaries (excluding the Falcon Subsidiaries) for the period from the Effective Date through December 31, 2023, which such projected financial statements shall be updated from time to time pursuant to Section 7.01(a)(vii). (h) Compliance with Law, Etc. No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents, (ii) any Requirement of Law, except where the
- 130 - 146576709v1146576709v15 failure to so comply could not reasonably be expected to have a Material Adverse Effect, or (iii) any Contractual Obligation (including, without limitation, any Material Contract) binding on or otherwise affecting it or any of its properties, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect, and no default or event of default has occurred and is continuing thereunder. (i) ERISA; Canadian Pensions, Etc.. (i) No ERISA Event has occurred nor is reasonably expected to occur with respect to any Employee Plan or Multiemployer Plan. Except as set forth on Schedule 6.01(i) or as could not reasonably be expected to have a Material Adverse Effect, (i) each Loan Party and each Employee Plan is in compliance with all Requirements of Law in all material respects, including ERISA, the Internal Revenue Code and the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010, (ii) the most recent annual report (Form 5500 Series) with respect to each Pension Plan, including any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Administrative Agent, is complete and correct and fairly presents the funding status of such Pension Plan, and since the date of such report, there has been no material adverse change in such funding status, (iii) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service with respect to any Employee Plan have been delivered to the Administrative Agent, and (iv) each Employee Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Internal Revenue Code and the trust related thereto is exempt from federal income tax under Section 501(a) of the Internal Revenue Code. No Loan Party or any of its ERISA Affiliates has incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. There are no pending or, to the best knowledge of any Loan Party, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course) asserted or instituted against (A) any Employee Plan or its assets, (B) any fiduciary with respect to any Employee Plan, or (C) any Loan Party or any of its ERISA Affiliates with respect to any Employee Plan, in each case, that could reasonably be expected to have a Material Adverse Effect. Except as required by Section 4980B of the Internal Revenue Code or as could not reasonably be expected to have a Material Adverse Effect, no Loan Party or any of its ERISA Affiliates maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) that provides health benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its ERISA Affiliates or has any obligation to provide any such benefits for any current employee after such employee's termination of employment. (ii) (A) No Loan Party nor any Subsidiary maintains, sponsors, administers, contributes to, participates in or has any liability in respect of any Canadian DB Pension Plan, nor has any such Person ever maintained, sponsored, administered, contributed to or participated in any Canadian DB Pension Plan; (B) the Canadian Pension Plans are duly registered under the Income Tax Act (Canada) and any other applicable laws which require registration, have been administered in accordance with the Income Tax Act (Canada) and such other applicable laws and no event has occurred which could cause the loss of such registered
- 131 - 146576709v1146576709v15 status; (C) all obligations of the Loan Parties and their Subsidiaries (including funding, investment and administration obligations) required to be performed in connection with the Canadian Pension Plans have been performed on a timely basis except where the failure to so perform on a timely basis would not be reasonably expected to have a Material Adverse Effect; (D) all contributions or premiums required to be made or paid by the Loan Parties and their Subsidiaries to the Canadian Pension Plans and Canadian Benefit Plans have been made on a timely basis in accordance with the terms of such plans and all applicable laws; (E) no Loan Party or Subsidiary has a material liability with respect to any post-retirement benefit under a Canadian Benefit Plan; and (F) there are no outstanding disputes concerning the Canadian Pension Plans or Canadian Benefit Plans or the assets thereof which would reasonably be expected to have a Material Adverse Effect. (j) Taxes, Etc. (i) All Tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party have been timely filed and (ii) all Taxes imposed upon any Loan Party or any property of any Loan Party which have become due and payable on or prior to the date hereof have been paid, except (A) unpaid Taxes in an aggregate amount at any one time not in excess of $2,500,000, and/or (B) Taxes contested in good faith by proper proceedings and with respect to which adequate reserves have been set aside for the payment thereof on the Financial Statements in accordance with GAAP. (k) Regulations T, U and X. No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U and X. (l) Nature of Business. (i) No Loan Party is engaged in any business other than as set forth on Schedule 6.01(l). (ii) Neither the Parent, Mondee Holdings II nor Mondee Brazil has any material liabilities (other than liabilities arising under the Loan Documents, the Transaction Documents (as defined in the Business Combination Agreement), the Orinter Acquisition Documents, the Interep Acquisition Documents, the Consolid Mexico Acquisition Documents, the Skypass Acquisition Documents, its Equity Interests, applicable securities laws or tax liabilities), owns any material assets (other than the Equity Interests of its Subsidiaries) or engages in any operations or business (other than the ownership of its Subsidiaries or relating to or arising out of compliance obligations as a public company). (m) Adverse Agreements, Etc. No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court or other Governmental Authority, which (either individually or in the aggregate) has, or in the future
- 132 - 146576709v1146576709v15 could reasonably be expected (either individually or in the aggregate) to have, a Material Adverse Effect. (n) Permits, Etc. Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business and Facility currently owned, leased, managed or operated, or to be acquired, by such Person, except to the extent the failure to have or be in compliance therewith could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and there is no claim that any thereof is not in full force and effect. (o) Properties. Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets material to its business, free and clear of all Liens, except Permitted Liens. All such properties and assets are in good working order and condition, ordinary wear and tear excepted. (p) Employee and Labor Matters. Except as set forth on Schedule 6.01(p) or when the failure to do so could not reasonably be expected to have a Material Adverse Effect, (i) each Loan Party and its Subsidiaries is in compliance with all Requirements of Law pertaining to employment and employment practices, terms and conditions of employment, wages and hours, and occupational safety and health, (ii) there is no unfair labor practice complaint pending or, to the best knowledge of any Loan Party, threatened against any Loan Party or any Subsidiary before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against any Loan Party or any Subsidiary which arises out of or under any collective bargaining agreement, and (iii) there has been no strike, work stoppage, slowdown, lockout, or other labor dispute pending or threatened against any Loan Party or any Subsidiary. Except as set forth on Schedule 6.01(p), (A) no Loan Party or any Subsidiary is party to any collective bargaining agreement, nor has any labor union been recognized as the representative of the employees of any Loan Party of Subsidiary, and (B) to the best knowledge of each Loan Party, no labor organization or group of employees has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. No Loan Party or Subsidiary has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act (“WARN”) or any similar Requirement of Law, which remains unpaid or unsatisfied. All payments due from any Loan Party or Subsidiary on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of such Loan Party or Subsidiary, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (q) Environmental Matters. Except as set forth on Schedule 6.01(q), (i) no Loan Party or any of its Subsidiaries is in violation of any Environmental Law, (ii) each Loan Party and its Subsidiaries has, and is in compliance with, all Environmental Permits for its respective operations and businesses, except to the extent any failure to have or be in compliance
- 133 - 146576709v1146576709v15 therewith could not reasonably be expected to result in a material Environmental Claim or Environmental Liability; (iii) there has been no Release of Hazardous Materials at any properties currently or formerly owned, leased or operated by any Loan Party, its Subsidiaries or a respective predecessor in interest or at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party, its Subsidiaries or any respective predecessor in interest, which in any case of the foregoing could reasonably be expected to result in a material Environmental Claim or Environmental Liability; (iv) there are no pending or threatened Environmental Claims against, or Environmental Liability of, any Loan Party, its Subsidiaries or any respective predecessor in interest that could reasonably be expected to result in a material Environmental Claim or Environmental Liability; (v) neither any Loan Party nor any of its Subsidiaries is performing or responsible for any Remedial Action that could reasonably be expected to result in a material Environmental Claim or Environmental Liability; and (vi) the Loan Parties have made available to the Administrative Agent and Lenders true and complete copies of all material environmental reports, audits, and investigations in the possession or control of any Loan Party or any of its Subsidiaries with respect to the operations and business of the Loan Parties and its Subsidiaries. (r) Insurance. Each Loan Party maintains all insurance required by Section 7.01(h). Schedule 6.01(r) sets forth a list of all such insurance maintained by or for the benefit of each Loan Party on the Effective Date. (s) Use of Proceeds. The proceeds of the Loans shall be used to (i) fund a portion of the cash or deferred consideration payable or repay any note issued in connection with the Falcon Acquisition, (ii) refinance other existing Indebtedness of the Loan Parties, (iii) pay fees and expenses incurred in connection with the transactions contemplated by clauses (i) and (ii) above, and (iv) fund general corporate purposes of the Loan Parties. The proceeds of the Amendment No. 21 Term Loans #1 shall be used to fund the Term Loan A Payments #1. The proceeds of the Amendment No. 21 Term Loans #2 shall be used to (A) first, fund the Term Loan A Payments #2 and (B) then, fund general corporate purposes of the Loan Parties. (t) Solvency. After giving effect to the transactions contemplated by this Agreement and before and after giving effect to each Loan, each Loan Party is, and the Loan Parties on a consolidated basis are, 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. (u) Intellectual Property. Except as set forth on Schedule 6.01(u), each Loan Party owns or licenses or otherwise has the right to use all Intellectual Property rights that are necessary for the operation of its business, without infringement upon or conflict with the rights of any other Person with respect thereto, except for such infringements and conflicts which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 6.01(u) is a complete and accurate list as of the Effective Date of each item of Registered Intellectual Property owned by each Loan Party. No trademark or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending
- 134 - 146576709v1146576709v15 or threatened, except for such infringements and conflicts which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of each Loan Party, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code pertaining to Intellectual Property is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (v) Material Contracts. Set forth on Schedule 6.01(v) is a complete and accurate list as of the Effective Date of all Material Contracts of each Loan Party, showing the parties and subject matter thereof and amendments and modifications thereto. Each such Material Contract (i) is in full force and effect and is binding upon and enforceable against each Loan Party that is a party thereto and, to the best knowledge of such Loan Party, all other parties thereto in accordance with its terms, (ii) has not been otherwise amended or modified, and (iii) is not in default due to the action of any Loan Party or, to the best knowledge of any Loan Party, any other party thereto. (w) Investment Company Act. None of the Loan Parties is (i) an “investment company” or an “affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended, or (ii) subject to regulation under any Requirement of Law that limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable. (x) Customers and Suppliers. There exists no actual or threatened termination, cancellation or limitation of, or modification to or change in, the business relationship between (i) any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, or (ii) any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand, and there exists no present state of facts or circumstances that could give rise to or result in any such termination, cancellation, limitation, modification or change, in each case, except to the extent that such termination, cancellation, limitation, modification or change could not reasonably be expected to have a Material Adverse Effect. (y) Sanctions; Anti-Bribery and Corruption and Anti-Money Laundering Laws. None of any Loan Party, any Subsidiary thereof, any of their respective shareholders or owners, directors, officers or employees nor, to the knowledge of any Loan Party, any of their respective agents or Affiliates, (i) is a Sanctioned Person or currently the subject or target of any Sanctions, (ii) has assets located in a Sanctioned Country, (iii) conducts or is engaged in any business or activities with or for the benefit of any Sanctioned Person or Sanctioned Country in violation in of Sanctions, (iv) directly or indirectly derives revenues from investments in, or transactions with, Sanctioned Persons in violation of Sanctions, (v) is a “Foreign Shell Bank” within the meaning of the USA Patriot Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (vi) is a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA Patriot Act as warranting special measures due to money laundering concerns. Each Loan Party and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance by each Loan Party and its Subsidiaries and their respective directors, officers, employees, agents and Affiliates with
- 135 - 146576709v1146576709v15 all Anti-Bribery and Corruption Laws, Anti-Money Laundering Laws, and Sanctions. Each Loan Party and its Subsidiaries, their respective directors, officers and employees and, to the knowledge of each Loan Party, their respective agents or Affiliates, is in compliance with all Anti-Bribery and Corruption Laws and Anti-Money Laundering Laws. Each Loan Party and Affiliate, owner or shareholder, officer, employee or director acting on behalf of the Loan Party, is (and is taking no action which would result in any such Person not being) in compliance with (A) all Sanctions, including OFAC rules and regulations, and (B) all applicable Anti-Money Laundering Laws, including the USA Patriot Act. In addition, the purpose of the financing and use of proceeds do not include any kind of activities or business of or with any Sanctioned Person or in any Sanctioned Country that would result in a violation of any Sanctions. (z) Anti-Bribery and Corruption. (i) Neither any Loan Party or any Subsidiary thereof nor, to the knowledge of any Loan Party, any director, officer, employee, or anyone authorized to act on behalf of each Loan Party, has engaged in any activity which would breach applicable anti- bribery and corruption laws and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act 1977 as amended (the “FCPA”), the U.K. Bribery Act 2010, the Corruption of Foreign Public Officials Act (Canada), and the anti-bribery and anti-corruption laws and regulations of those jurisdictions in which the Loan Parties do business (the “Anti-Bribery and Corruption Laws”). (ii) Neither any Loan Party nor, to the knowledge of any Loan Party, any Subsidiary, director, officer, employee, or any other Person acting on behalf of any Loan Party, has, during the past five years, offered, promised, paid, given or authorized the payment or giving of any money or other thing of value, directly or indirectly, to or for the benefit of any Person, including without limitation, any employee, official or other Person acting on behalf of any Governmental Authority in violation of the FCPA or in violation of any other applicable Anti- Bribery and Corruption Laws. (iii) To the best of each Loan Party's knowledge and belief, no actions or investigations by any governmental or regulatory agency are ongoing or threatened against the Loan Parties, its directors, officers or employees or anyone acting on its behalf in relation to a breach of the Anti-Bribery and Corruption Laws, Anti-Money Laundering Laws or Sanctions. (iv) The Loan Parties will not directly or indirectly use, lend or contribute the proceeds of the Advances for any purpose that would breach the Anti-Bribery and Corruption Laws, Anti-Money Laundering Laws or Sanctions. (aa) Consummation of Acquisitions. (i) The Parent has delivered to the Administrative Agent complete and correct copies of the Falcon Acquisition Documents, including all schedules and exhibits thereto. The Falcon Acquisition Documents set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby. The execution, delivery and performance of the Falcon Acquisition Documents has been duly
- 136 - 146576709v1146576709v15 authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of each such Person. No authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority is required for such sale other than such as have been obtained on or prior to the Effective Date. Each Falcon Acquisition Document is the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with its terms. All conditions precedent to the Falcon Acquisition Agreement have been fulfilled or (with the prior written consent of the Administrative Agent) waived, no Falcon Acquisition Document has been amended or otherwise modified, and there has been no breach of any material term or condition of any Falcon Acquisition Document. (ii) By the date on which any Loans are made to fund the Kilimanjaro Acquisition pursuant to Section 5.02(g), the Parent shall have delivered to the Administrative Agent complete and correct copies of the Kilimanjaro Acquisition Documents, including all schedules and exhibits thereto. The Kilimanjaro Acquisition Documents, when so delivered, shall set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there shall be no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby. The execution, delivery and performance of the Kilimanjaro Acquisition Documents shall have been duly authorized by all necessary action (including, without limitation, the obtaining of any consent of stockholders or other holders of Equity Interests required by law or by any applicable corporate or other organizational documents) on the part of each such Person. No authorization or approval or other action by, and no notice to filing with or license from, any Governmental Authority shall be required for such sale other than such as have been obtained on or prior to the date thereof. Each Kilimanjaro Acquisition Document shall be the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with its terms. All conditions precedent to the Kilimanjaro Acquisition Agreement shall have been fulfilled or (with the prior written consent of the Administrative Agent) waived, no Kilimanjaro Acquisition Document shall have been amended or otherwise modified, and there shall have been no breach of any material term or condition of any Kilimanjaro Acquisition Document. (bb) Full Disclosure. (i) Each Loan Party has disclosed or made available to the Agents all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Agents (other than forward- looking information and projections and information of a general economic nature and general information about Borrowers' industry) in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not misleading.
- 137 - 146576709v1146576709v15 (ii) Projections have been prepared on a reasonable basis and in good faith based on assumptions, estimates, methods and tests that are believed by the Loan Parties to be reasonable at the time such Projections were prepared and information believed by the Loan Parties to have been accurate based upon the information available to the Loan Parties at the time such Projections were furnished to the Lenders, and Parent is not be aware of any facts or information that would lead it to believe that such Projections are incorrect or misleading in any material respect; it being understood that (A) Projections are by their nature subject to significant uncertainties and contingencies, many of which are beyond the Loan Parties' control, (B) actual results may differ materially from the Projections and such variations may be material and (C) the Projections are not a guarantee of performance. ARTICLE VII COVENANTS OF THE LOAN PARTIES AND OTHER COLLATERAL MATTERS Section 7.01 Affirmative Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party will, unless the Required Lenders shall otherwise consent in writing: (a) Reporting Requirements. Furnish to each Agent and each Lender: (i) as soon as available, and in any event within 30 days after the end of each fiscal month of the Parent and its Subsidiaries (or 45 days in the case of each fiscal month of the Parent and its Subsidiaries ending on December 31st of each Fiscal Year), commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, internally prepared consolidated and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows as at the end of such fiscal month, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such fiscal month, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year, and (B) the Projections, all in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in all material respects, the financial position of the Parent and its Subsidiaries as at the end of such fiscal month and the results of operations, retained earnings and cash flows of the Parent and its Subsidiaries for such fiscal month and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments; (ii) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Parent and its Subsidiaries commencing with the first Fiscal Quarter of the Parent and its Subsidiaries ending after the Effective Date, consolidated and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries as at the end of such quarter, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year and (B) the
- 138 - 146576709v1146576709v15 Projections, all in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in all material respects, the financial position of the Parent and its Subsidiaries as of the end of such quarter and the results of operations and cash flows of the Parent and its Subsidiaries for such quarter and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements of the Parent and its Subsidiaries furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments; (iii) as soon as available, and in any event within 120 days after the end of each Fiscal Year of the Parent and its Subsidiaries (or, in the case of the Fiscal Year of the Parent and its Subsidiaries ending December 31, 2020, on or before July 31, 2021), consolidated and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries as at the end of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year, and (B) the Projections, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of recognized standing selected by the Parent and satisfactory to the Agents (which opinion shall be without (1) a “going concern” or like qualification or exception, (2) any qualification or exception as to the scope of such audit, or (3) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7.03), together with a written statement of such accountants (x) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge of the existence of an Event of Default or a Default under Section 7.03 and (y) if such accountants shall have obtained any knowledge of the existence of an Event of Default or such Default, describing the nature thereof; (iv) simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 7.01(a), a certificate of an Authorized Officer of the Parent in substantially the form attached hereto as Exhibit F (a “Compliance Certificate”): (A) stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of the Parent and its Subsidiaries during the period covered by such financial statements with a view to determining whether the Parent and its Subsidiaries were in compliance with all of the provisions of this Agreement and such Loan Documents at the times such compliance is required hereby and thereby, and that such review has not disclosed, and such Authorized Officer has no knowledge of, the occurrence and continuance during such period of an Event of Default or Default or, if an Event of Default or Default had occurred and continued or is continuing, describing the nature and period of existence thereof and the action which the Parent and its Subsidiaries propose to take or have taken with respect thereto,
- 139 - 146576709v1146576709v15 (B) in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (ii) and (iii) of this Section 7.01(a), (1) attaching a schedule showing the calculation of the financial covenants specified in Section 7.03, (2) attaching a schedule showing the calculation of Unadjusted EBITDA, Consolidated EBITDA and Management EBITDA of the Parent and its Subsidiaries for the period of four (4) Fiscal Quarters then ended and (3) including a copy of the discussion and analysis of the financial condition and results of operations of the Parent and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the Projections for such period and the figures for the corresponding period in the previous Fiscal Year included in the Parent’s most recent quarterly report filed on Form 10-Q or its most recent annual report filed on Form 10-K, as applicable, and (C) in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clause (iii) of this Section 7.01(a), attaching (1) a summary of all material insurance coverage maintained as of the date thereof by any Loan Party or any of its Subsidiaries and evidence that such insurance coverage meets the requirements set forth in Section 7.01, each Security Agreement and each Mortgage, together with such other related documents and information as the Agents may reasonably require, (2) the calculation of the Excess Cash Flow in accordance with the terms of Section 2.05(c)(i) and (3) confirmation that there have been no changes to the information contained in each of the Perfection Certificates delivered on the Effective Date or the date of the most recently updated Perfection Certificate delivered pursuant to this clause (iv) and/or attaching an updated Perfection Certificate identifying any such changes to the information contained therein; (v) as soon as available and in any event within 30 days after the end of each fiscal month of the Parent and its Subsidiaries (or 45 days in the case of the fiscal months of the Parent and its Subsidiaries ending December 31, 2019, January 31, 2020, February 29, 2020 and March 31, 2020), the following reports in form and detail satisfactory to the Agents and certified by an Authorized Officer of the Administrative Borrower as being accurate and complete: (A) commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, reports listing all accounts receivable of the Loan Parties (other than airline customer accounts receivable) as of such day, which shall include the amount and age of each such account receivable, showing separately those which are more than 30, 60 and 90 days past due, together with such other information as the Agents may reasonably request regarding such accounts receivable and (B) commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, reports listing all accounts payable of the Loan Parties as of each such day which shall include the amount and age of each such account payable, together with such other information as the Agents may reasonably request regarding such accounts payable; (vi) (A) as soon as available, and in any event within 30 days after the end of each fiscal month of the Parent and its Subsidiaries (or 45 days in the case of the fiscal months of the Parent and its Subsidiaries ending December 31, 2019, January 31, 2020, February 29, 2020 and March 31, 2020), commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, a certificate of an Authorized Officer of the Parent substantially in the form attached hereto as Exhibit 7.01(a)(vi)-1, (B) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Parent and its Subsidiaries
- 140 - 146576709v1146576709v15 commencing with the first Fiscal Quarter of the Parent and its Subsidiaries ending after the Effective Date, a certificate of an Authorized Officer of the Parent substantially in the form attached hereto as Exhibit 7.01(a)(vi)-2, and (C) as soon as available, and in any event within 120 days after the end of each Fiscal Year of the Parent and its Subsidiaries (or 180 days in the case of the Fiscal Year of the Parent and its Subsidiaries ending December 31, 2019 and 150 days in the case of the Fiscal Year of the Parent and its Subsidiaries ending December 31, 2020), a certificate of an Authorized Officer of the Parent substantially in the form attached hereto as Exhibit 7.01(a)(vi)-3; (vii) as soon as available and in any event not later than 30 days after the end of each Fiscal Year (or for the Fiscal Year ending December 31, 2019 only, (A) 90 days after the end of such Fiscal Year with respect to the Falcon Subsidiaries and (B) the later of 90 days after the end of such Fiscal Year and 60 days after the completion of the Kilimanjaro Acquisition with respect to the Kilimanjaro Subsidiaries), a certificate of an Authorized Officer of the Parent (1) attaching Projections for the Parent and its Subsidiaries, supplementing and superseding the Projections previously required to be delivered pursuant to this Agreement, presented using a monthly format and otherwise in form and substance satisfactory to the Agents, for the immediately succeeding Fiscal Year for the Parent and its Subsidiaries and (2) certifying that the representations and warranties set forth in Section 6.01(bb)(ii) are true and correct with respect to the Projections; (viii) promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority; (ix) as soon as possible, and in any event within 3 days after the date that the Parent or any of its Subsidiaries has actual knowledge of an Event of Default or Default or the occurrence of any event or development that could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Administrative Borrower setting forth the details of such Event of Default or Default or other event or development having a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto; (x) as soon as possible and in any event: (A) at least 10 days prior to any event or development that could reasonably be expected to result in or constitute an ERISA Event, and, to the extent not reasonably expected, within 5 days after the occurrence of any such ERISA Event, notice of such ERISA Event (in reasonable detail), (B) within three days after receipt thereof by any Loan Party or any of its ERISA Affiliates from the PBGC, copies of each notice received by any Loan Party or any of its ERISA Affiliates of the PBGC's intention to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan, (C) within 10 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Pension Plan, (D) within 3 days after receipt thereof by any Loan Party or any of its ERISA Affiliates from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA, and (E) within 10 days after any Loan
- 141 - 146576709v1146576709v15 Party sends notice of a plant closing or mass layoff (as defined in WARN) to employees, copies of each such notice sent by such Loan Party; (xi) promptly after the commencement thereof but in any event not later than 5 days after service of process with respect thereto on, or the obtaining of knowledge thereof by, any Loan Party, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected to have a Material Adverse Effect; (xii) as soon as possible and in any event within 5 days after the execution, receipt or delivery thereof, (A) copies of any material notices (including, without limitation, default notices), reports, statements or other material information that any Loan Party executes, receives or delivers in connection with any Falcon Acquisition Document, Kilimanjaro Acquisition Document, Rocketrip Acquisition Document, Orinter Acquisition Document, Interep Acquisition Document, Consolid Mexico Acquisition Document, Skypass Acquisition Document or any other Material Contract or any other acquisition document executed or delivered in connection with a Permitted Acquisition and (B) copies of any amendments, restatements, supplements or other modifications, waivers, consents or forbearances that any Loan Party executes, receives or delivers with respect to any Falcon Acquisition Document, any Kilimanjaro Acquisition Document, any Rocketrip Acquisition Document, any Orinter Acquisition Document, any Interep Acquisition Document, any Consolid Mexico Acquisition Document, any Skypass Acquisition Document or any other Material Contract or any other acquisition document executed or delivered in connection with a Permitted Acquisition; (xiii) commencing on the Amendment No. 13 Effective Date and on each day thereafter until the Termination Date, a report (which may be delivered by electronic mail) in the format, with the details and in the frequency as agreed to by the Agents in writing prior to the Amendment No. 13 Effective Date; (xiv) as soon as possible and in any event within 5 days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or all or substantially all of the assets of, any Loan Party; (xv) copies of all reports or other information delivered to the Parent's or any Borrower's Board of Directors, to the extent required under Section 7.01(p); (xvi) promptly after (A) the sending or filing thereof, copies of all statements, reports and other information any Loan Party sends to any holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange and (B) the receipt thereof, a copy of any material notice received from any holder of its Indebtedness; (xvii) promptly upon receipt thereof, copies of all financial reports (including, without limitation, management letters), if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;
- 142 - 146576709v1146576709v15 (xviii) promptly upon request, any certification or other evidence requested from time to time by any Lender in its sole discretion, confirming the Borrowers' compliance with Section 7.02(r); (xix) promptly upon reasonable request, information and documentation reasonably requested by any Agent or any Lender for purposes of compliance with the Beneficial Ownership Regulation; (xx) simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 7.01(a), if, as a result of any change in accounting principles and policies from those used in the preparation of the Financial Statements that is permitted by Section 7.02(q), the consolidated financial statements of the Parent and its Subsidiaries delivered pursuant to clauses (i), (ii) and (iii) of this Section 7.01(a) will differ from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to the Administrative Agent; (xxi) (A) as soon as available and in any event within 30 days after the end of each fiscal month of the Parent and its Subsidiaries (or 45 days in the case of the fiscal months of the Parent and its Subsidiaries ending January 31, 2020, February 29, 2020 and March 31, 2020), reports in form and detail satisfactory to the Agents and certified by an Authorized Officer of the Administrative Borrower as being accurate and complete listing all airline customer accounts receivable of the Loan Parties as of such day, which shall include the amount and age of each such airline customer account receivable, showing separately those which are up to 90 days, 90 to 120 days, 121 to 150 days, 151 to 180 days, 181 to 270 days, 271 to 360 days and over 361 days past the date such airline customer accounts receivable were created, together with such other information as the Agents may reasonably request regarding such airline customer accounts receivable and (B) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Parent and its Subsidiaries commencing with the Fiscal Quarter of the Parent and its Subsidiaries ending March 31, 2020, a schedule in form and detail satisfactory to the Agents describing all Liens, set-offs, defenses and counterclaims with respect to such accounts receivable outstanding at the end of such Fiscal Quarter, together with a reconciliation of such schedule with the schedule delivered to the Agents pursuant to this clause (xxi)(B) for the immediately preceding Fiscal Quarter and such other information as the Agents may reasonably request with respect to such Liens, set-offs, defenses and counterclaims; (xxii) as soon as available and in any event within 5 Business Days after the end of each fiscal month of the Parent and its Subsidiaries ending during the period from May 1, 2020 through December 31, 2021, commencing with the first such fiscal month, a certificate of an Authorized Officer of the Loan Parties (A) setting forth (1) the Qualified Cash (minus the aggregate amount of all trade payables or other accounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables) as of the end of each day during such fiscal month and (2) [reserved] and (B) stating that the Parent and its Subsidiaries were in compliance with Section 7.03(e) for such fiscal month; and
- 143 - 146576709v1146576709v15 (xxiii) promptly upon reasonable request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party as any Agent or any Lender may from time to time may reasonably request. Notwithstanding the foregoing, for any item required to be delivered pursuant to Section 7.01(a)(i), (ii), (iii), (v), (vi), (vii) or (xxi) on or prior to July 31, 2020, the deadline for delivering such item shall be deemed extended by a period of 15 days. Each Agent and each Lender hereby acknowledges and agrees that the Parent and its Subsidiaries may elect to or be required to restate historical financial statements as the result of the impact of non-recurring events (e.g., hurricane, polar vortex, fire, other natural disaster, pandemic, etc.), and that such restatements will not result in a Default or an Event of Default under this Agreement or any other Loan Document. (b) Additional Borrowers, Guarantors and Collateral Security. Cause: (i) each Subsidiary of any Loan Party (other than an Immaterial Foreign Subsidiary, a Special Purpose Subsidiary, Orinter, Interep or the Consolid Mexico Subsidiaries) not in existence on the Effective Date and each Subsidiary of any Loan Party which is an Immaterial Foreign Subsidiary on the Effective Date or upon formation or acquisition but later ceases to be an Immaterial Foreign Subsidiary, to execute and deliver to the Administrative Agent promptly and in any event within 3 days after the formation, acquisition or change in status thereof, (A) a Joinder Agreement, pursuant to which such Subsidiary shall be made a party to this Agreement as a Borrower or a Guarantor, (B) a supplement to the Security Agreement, the Mexican Security Documents or the Brazil Security Documents, as applicable, together with (1) certificates evidencing all of the Equity Interests of any Person owned by such Subsidiary required to be pledged under the terms of the Security Agreement, the Mexican Security Documents and/or the Brazil Security Documents, as applicable, (2) unless otherwise provided under any Loan Document, undated stock powers for such Equity Interests executed in blank with signature guaranteed, and (3) such opinions of counsel as the Administrative Agent may reasonably request, (C) to the extent required under the terms of this Agreement, one or more Mortgages creating on the real property of such Subsidiary a perfected, first priority Lien (in terms of priority, subject only to Permitted Specified Liens) on such real property and such other Real Property Deliverables as may be required by the Administrative Agent with respect to each such real property (to the extent, with respect to any leasehold Facility, the lease with respect thereto requires the payment of annual rent exceeding in the aggregate $1,000,000 or such leasehold Facility is listed in Schedule III of the Security Agreement as a chief executive office), and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Administrative Agent in order to create, perfect, establish the first priority of or otherwise protect any Lien purported to be covered by any such Security Agreement, applicable Brazil Security Document, applicable Mexican Security Document and/or Mortgage or otherwise to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that all property and assets of such Subsidiary shall become Collateral for the Obligations; and (ii) each owner of the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 3 days after the formation or acquisition of
- 144 - 146576709v1146576709v15 such Subsidiary a Pledge Amendment (as defined in the Security Agreement), applicable Mexican Security Document and/or applicable Brazil Security Document, together with (A) certificates evidencing all of the Equity Interests of such Subsidiary required to be pledged under the terms of the Security Agreement, applicable Mexican Security Document and/or applicable Brazil Security Document, (B) unless otherwise provided under any Loan Document, undated stock powers or other appropriate instruments of assignment for such Equity Interests executed in blank with signature guaranteed, (C) such opinions of counsel as the Administrative Agent may reasonably request and (D) such other agreements, instruments, approvals or other documents requested by the Administrative Agent. (c) Compliance with Laws; Payment of Taxes. (i) Comply, and cause each of its Subsidiaries to comply, with all Requirements of Law, judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing), except to the extent the failure to so comply could not reasonably be expected to have a Material Adverse Effect. (ii) Pay, and cause each of its Subsidiaries to pay, in full before delinquency or before the expiration of any extension period, all Taxes imposed upon any Loan Party or any of its Subsidiaries or any property of any Loan Party or any of its Subsidiaries, except (i) unpaid Taxes in an aggregate amount at any one time not in excess of $2,500,000, and/or (ii) other unpaid Taxes contested in good faith by proper proceedings and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP. (d) Preservation of Existence, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence, rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except to the extent that the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect. (e) Keeping of Records and Books of Account. Keep, and cause each of its Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP. (f) Inspection Rights. Permit, and cause each of its Subsidiaries to permit, any Agent (and any Lenders accompanying any Agent) and representatives of any Agent (and any Lenders accompanying any Agent), at any time and from time to time during normal business hours, to examine and make copies of and abstracts from its records and books of account, to visit and inspect its properties, to verify materials, leases, notes, accounts receivable, deposit accounts and its other assets, to conduct audits, inspections, valuations, appraisals or examinations and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants or any of its other representatives. In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants, and the independent accountants of each of its Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently or together with representatives of such Person) with any
- 145 - 146576709v1146576709v15 Agent (and any Lenders accompanying any Agent) and representatives of any Agent (and any Lenders accompanying any Agent) in accordance with this Section 7.01(f). (g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear and casualty excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder, except to the extent the failure to so maintain and preserve or so comply could not reasonably be expected to have a Material Adverse Effect. (h) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability, hazard, flood, rent, worker's compensation and business interruption insurance) with respect to the Collateral and its other properties (including all real property leased or owned by it) and business, in such amounts and covering such risks as is (i) carried generally in accordance with sound business practice by companies in similar businesses similarly situated, (ii) required by any Requirement of Law, (iii) required by any Material Contract and (iv) in any event in amount, adequacy and scope reasonably satisfactory to the Administrative Agent. All policies covering the Collateral are to be made payable to the Administrative Agent for the benefit of the Secured Parties, as their interests may appear, in case of loss, under a standard non-contributory “lender” or “secured party” clause and are to contain such other provisions as the Administrative Agent may require to fully protect the Lenders' interest in the Collateral and to any payments to be made under such policies. All certificates of insurance are to be delivered to the Administrative Agent and the policies are to be premium prepaid, with the loss payable and additional insured endorsement in favor of the Administrative Agent for the benefit of the Secured Parties, as their respective interests may appear, and such other Persons as the Administrative Agent may designate from time to time, and shall provide for not less than 30 days' (10 days' in the case of non-payment) prior written notice to the Administrative Agent of the exercise of any right of cancellation. If any Loan Party or any of its Subsidiaries fails to maintain such insurance, the Administrative Agent may arrange for such insurance, but at the Borrowers' expense and without any responsibility on the Administrative Agent's part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the sole right, in the name of the Lenders, any Loan Party and its Subsidiaries, to file claims under any insurance policies, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies. (i) Obtaining of Permits, Etc. Obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all permits, licenses, authorizations, approvals, entitlements and accreditations that are necessary or useful in the proper conduct of its business, in each case, except to the extent the failure to
- 146 - 146576709v1146576709v15 obtain, maintain, preserve or take such action could not reasonably be expected to have a Material Adverse Effect. (j) Environmental. (i) Keep the Collateral free of any Environmental Lien; (ii) Obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all Environmental Permits that are necessary or useful in the proper conduct of its business, and comply, and cause each of its Subsidiaries to comply, with all Environmental Laws and Environmental Permits, except to the extent the failure to so obtain, maintain, preserve or comply could not reasonably be expected to result in a material Environmental Claim or Environmental Liability; (iii) Take all commercially reasonable steps to prevent any Release of Hazardous Materials in violation of any Environmental Law or Environmental Permit at, on, under or from any property owned, leased or operated by any Loan Party or its Subsidiaries that could reasonably be expected to result in a material Environmental Claim or Environmental Liability; (iv) Provide the Administrative Agent with written notice within ten (10) days of any of the following: (A) discovery of any Release of a Hazardous Material or environmental condition at, on, under or from any property currently or formerly owned, leased or operated by any Loan Party, Subsidiary or predecessor in interest or any violation of Environmental Law or Environmental Permit that in any case could reasonably be expected to result in a material Environmental Claim or Environmental Liability; (B) notice that an Environmental Lien has been filed against any Collateral; or (C) a material Environmental Claim or Environmental Liability; and provide such reports, documents and information as the Administrative Agent may reasonably request from time to time with respect to any of the foregoing. (k) Fiscal Year. Cause the Fiscal Year of the Parent and its Subsidiaries to end on December 31 of each calendar year unless the Administrative Agent consent to a change in such Fiscal Year (and appropriate related changes to this Agreement). (l) Landlord Waivers; Collateral Access Agreements. Obtain written subordinations or waivers or collateral access agreements, as the case may be, in form and substance satisfactory to the Administrative Agent, with respect to each of the following locations (to the extent such location is not owned by a Loan Party): (i) the headquarters location of each Loan Party, (ii) each other location of each Loan Party at which books and records of any Loan Party or any of its Subsidiaries are located, and (iii) each other location at which Collateral with a fair market value in excess of $1,000,000 (when aggregated with all other Collateral at the same location) is located or stored. (m) After Acquired Real Property. Upon the acquisition by it or any of its Subsidiaries after the date hereof of any interest (whether fee or leasehold) in any real property (wherever located) (each such interest being a “New Facility”) (i) with a Current Value (as
- 147 - 146576709v1146576709v15 defined below) in excess of $1,000,000 in the case of a fee interest, or (ii) requiring the payment of annual rent exceeding in the aggregate $1,000,000 in the case of leasehold interest, immediately so notify the Administrative Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party's good-faith estimate of the current value of such real property (for purposes of this Section, the “Current Value”). The Administrative Agent shall notify such Loan Party whether it intends to require a Mortgage (and any other Real Property Deliverables) or landlord's waiver (pursuant to Section 7.01(l) hereof)) with respect to such New Facility. Upon receipt of such notice requesting a Mortgage (and any other Real Property Deliverables) or landlord's waiver, the Person that has acquired such New Facility shall promptly furnish the same to the Administrative Agent. The Borrowers shall pay all fees and expenses, including, without limitation, reasonable attorneys' fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party's obligations under this Section 7.01(m). (n) Anti-Bribery and Corruption Laws; Anti-Money Laundering Laws; Sanctions. (i) Maintain, and cause each of its Subsidiaries to maintain, policies and procedures designed to promote compliance by each Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with all Anti-Bribery and Corruption Laws Anti-Money Laundering Laws, and Sanctions. (ii) Comply, and cause each of its Subsidiaries to comply, with all Anti- Bribery and Corruption Laws, Anti-Money Laundering Laws, and Sanctions, including, but not limited to, the U.S. Anti-Bribery and Corruption Laws, the U.S. Anti-Money Laundering Laws, and U.S. Sanctions. (iii) Neither any Loan Party nor, to knowledge of any Loan Party, any director, officer, employee, or anyone authorized to act on behalf of any Loan Party will engage in any activity which would breach the Anti-Bribery and Corruption Laws. (iv) Promptly notify the Administrative Agent of any action, suit or investigations by any court or Governmental Authority or regulatory agency in relation to any alleged breach by the Loan Parties, their Subsidiaries, directors, officers, employees or anyone authorized to act on their behalf of the Anti-Bribery and Corruption Laws, Anti-Money Laundering Laws and Sanctions. (v) Refrain from directly or indirectly using, lending or contributing the proceeds of the Advances for any purpose that would breach the Anti-Bribery and Corruption Laws, Anti-Money Laundering Laws or Sanctions. (vi) Each Loan Party and Affiliate, officer, employee, director, and any other Person authorized to act on behalf of the Loan Party is (and will take no action which would result in any such Person not being) in compliance with Sanctions, Anti-Bribery and corruption Laws, and Anti-Money Laundering Laws. In addition, none of the activities or
- 148 - 146576709v1146576709v15 business of any Loan Party or Affiliate includes any kind of activities or business of or with any Sanctioned Person or in or with any Sanctioned Country in violation of Sanctions. (vii) In order to comply with the “know your customer/borrower” requirements of the Anti-Money Laundering Laws, the Loan Parties are required to provide certain information relating to individuals and entities which maintain a business relationship with the Lender. Accordingly, each of the parties agrees to provide to the Lender, upon their reasonable request from time to time such identifying information and documentation as may be available for such party in order to enable the Lender to comply with Anti-Money Laundering Laws. (viii) Promptly notify the Agents in writing in the event any Loan Party has actual knowledge that any Loan Party cannot comply with the covenants set forth in this Section 7.01(n), including but not limited to instances where it has actual knowledge that any Loan Party has engaged in any activity that materially violates Sanctions. (o) Lender Meetings. Upon the reasonable request of the Administrative Agent or the Required Lenders (which request, so long as no Event of Default shall have occurred and be continuing, shall not be made more than once during each Fiscal Quarter of the Parent and its Subsidiaries), participate in a meeting with the Administrative Agent and the Lenders at the Borrowers' corporate offices (or at such other location (or by such other means (including, without limitation, conference call)) as may be agreed to by the Administrative Borrower and the Administrative Agent or the Required Lenders) at such time as may be agreed to by the Administrative Borrower and the Administrative Agent or the Required Lenders. (p) Board Observation Rights. Each Lender whose portion of the Loans is at least $40,000,000 or more of the combined principal amount of Loans outstanding and unused Commitments (or, if no Lender meets such threshold, the Lender with the highest combined principal amount of Loans outstanding and unused Commitments) shall be entitled to designate one observer who shall at all times be an officer or employee of such Lender (the “Board Observer”) to attend any regular meeting (a “BOD Meeting”) of the Board of Directors of the Parent (or its direct or indirect ultimate parent holding company) or any of its Subsidiaries (or, in each case, any relevant committees thereof), except that the Board Observer shall not be entitled to vote on matters presented to or discussed by the Board of Directors (or any relevant committee thereof) of the Parent (or its direct or indirect ultimate parent holding company) or any of its Subsidiaries at any such meetings. The Board Observer shall be timely notified of the time and place of any BOD Meetings (which shall be held no less than once per quarter) and will be given written notice of all proposed actions to be taken by the Board of Directors (or any relevant committee thereof) of the Parent (or its direct or indirect ultimate parent holding company) and any of its Subsidiaries at such meeting as if the Board Observer were a member thereof. Such notice shall describe in reasonable detail the nature and substance of the matters to be discussed and/or voted upon at such meeting (or the proposed actions to be taken by written consent without a meeting). The Board Observer shall have the right to receive all information provided to the members of the Board of Directors or any similar group performing an executive oversight or similar function (or any relevant committee thereof) of the Parent (or its direct or indirect ultimate parent holding company) and any of its Subsidiaries in anticipation of or at such meeting (regular or special and whether telephonic or otherwise), in addition to copies of the
- 149 - 146576709v1146576709v15 records of the proceedings or minutes of such meeting, when provided to the members, and the Board Observer shall keep such materials and information confidential in accordance with Section 12.19 of this Agreement. The Borrowers shall reimburse the Board Observer for all reasonable out-of-pocket costs and expenses incurred in connection with its participation in any such BOD Meeting. Notwithstanding the foregoing, the Board Observer may be excluded from access to any meeting of the Board of Directors (or any relevant committee thereof) of the Parent or any of its Subsidiaries or portion thereof (and from materials and information related thereto, including any summary of minutes of such meeting or portion thereof) to the extent the Parent reasonably determines in good faith (i) that such exclusion is necessary to preserve attorney-client privilege or (ii) that such meeting (or portion thereof) or materials present a bona fide conflict of interest between the Borrowers and the Agents and the Lenders. (q) Further Assurances. Take such action and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments or other documents as any Agent may require from time to time in order (i) to carry out more effectively the purposes of this Agreement and the other Loan Documents, (ii) to subject to valid and perfected first priority Liens any of the Collateral or any other property of any Loan Party and its Subsidiaries, (iii) to establish and maintain the validity and effectiveness of any of the Loan Documents and the validity, perfection and priority of the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer and confirm unto each Secured Party the rights now or hereafter intended to be granted to it under this Agreement or any other Loan Document. In furtherance of the foregoing, to the maximum extent permitted by applicable law, each Loan Party (i) authorizes the Administrative Agent to execute any such agreements, instruments or other documents in such Loan Party's name and to file such agreements, instruments or other documents in any appropriate filing office, (ii) authorizes the Administrative Agent to file any financing statement required hereunder or under any other Loan Document, and any continuation statement or amendment with respect thereto, in any appropriate filing office without the signature of such Loan Party, and (iii) ratifies the filing of any financing statement, and any continuation statement or amendment with respect thereto, filed without the signature of such Loan Party prior to the date hereof. (r) CARES Act Indebtedness. (i) Comply, in all material respects, with the SBA’s terms and conditions applicable to any CARES Act Indebtedness. (ii) Use the proceeds of any CARES Act Indebtedness solely for “allowable uses” of proceeds of an SBA PPP Loan as described in Section 1102 of the CARES Act. (iii) To the extent eligible, promptly use commercially reasonable efforts to apply for forgiveness of any CARES Act Indebtedness and submit all documents required to obtain forgiveness or other relief of such CARES Act Indebtedness by all deadlines
- 150 - 146576709v1146576709v15 required by the CARES Act (and provide documentation and status of such forgiveness to the Administrative Agent upon the Administrative Agent's reasonable request). (iv) Promptly (and in any event within 5 Business Days) upon execution and delivery thereof, provide copies of any material amendments, modifications, waivers, supplements or consents executed and delivered with respect to any CARES Act Indebtedness, and copies of any notices of default received by any Loan Party with respect to any CARES Act Indebtedness. (v) Promptly (and in any event within 5 Business Days) upon receipt or delivery thereof, provide copies of all material documents, applications and correspondence with any applicable lender or any applicable Governmental Authority received or delivered relating to any CARES Act Indebtedness, including with respect to loan forgiveness with respect to any CARES Act Indebtedness. (s) Retention of Financial AdvisorAdvisors. (i) Retain GlassRatner as a financial advisor through June 30, 2020, with a scope of authority reasonably acceptable to the Administrative Agent to, among other things, support the Chief Financial Officer of the Loan Parties. (i) (A) After written request from the Administrative Agent, retain a financial advisor acceptable to the Administrative Agent, the Term Loan B Lenders, the majority holders of the Series A Preferred Stock and the Loan Parties, on terms and conditions and with a scope of engagement reasonably acceptable in good faith to the Administrative Agent, the Term Loan B Lenders, the majority holders of the Series A Preferred Stock and the Loan Parties (the “Financial Advisor”); provided that such written request from the Administrative Agent shall specify the financial advisor acceptable to the Administrative Agent, the Term Loan B Lenders and the majority holders of the Series A Preferred Stock, provided further, that the agreement of the Loan Parties to the selection of the Financial Advisor and the Financial Advisor’s scope of engagement shall not be unreasonably withheld, conditioned or delayed. (B) (ii) Reasonably cooperate with such financial advisorthe Financial Advisor and grant such financial advisorthe Financial Advisor access to the books and records of the Loan Parties. (C) (iii) Permit the Administrative Agent (or its agents or advisors) to communicate directly with such financial advisorthe Financial Advisor regarding any and all matters related to the Loan Parties and their Affiliates, including, without limitation, all financial reports and projections developed, reviewed or verified by such financial advisorthe Financial Advisor and all additional information, reports and statements reasonably requested by the Administrative Agent (so long as the Loan Parties have the opportunity to be present for or to be copied on such communications, as applicable). (D) (iv) Authorize and direct such financial advisorthe Financial Advisor to provide the Administrative Agent (or its agents or advisors) with copies of reports and other information or materials prepared or reviewed by such financial advisorthe
- 151 - 146576709v1146576709v15 Financial Advisor as the Administrative Agent may reasonably request (with a copy to the Loan Parties, to the extent not previously provided to the Loan Parties). (E) (v) During the term of engagement of such financial advisorthe Financial Advisor, host such periodic telephonic conference calls with such financial advisorthe Financial Advisor, the Administrative Agent and the Lenders as the Administrative Agent may reasonably request to discuss such matters as the Administrative Agent may reasonably request. (ii) After written request from the Administrative Agent, retain an investment banker acceptable to the Administrative Agent on terms and conditions and with a scope of engagement reasonably acceptable in good faith to the Administrative Agent for the commencement of a refinancing and/or capital-raise process with respect to a Refinancing; provided that (A) such written request from the Administrative Agent shall specify at least three (3) investment bankers acceptable to the Administrative Agent, (B) the Loan Parties shall have the right, if exercised within five (5) Business Days, to propose two (2) investment bankers in addition to those specified by the Administrative Agent, (C) the Administrative Agent shall then specify two (2) investment bankers from those proposed pursuant to clauses (A) and (B) of this paragraph, (D) within five (5) Business Days after receipt of the list provided pursuant to clause (C) of this paragraph, the Loan Parties shall select the investment banker from such list and (E) all such proposed investment bankers shall be nationally or internationally recognized organizations with appropriate industry concentration expertise. (t) Stock Repurchase Investment. On or prior to the Stock Repurchase Investment Date, the Loan Parties shall have received the proceeds of an issuance of Qualified Equity Interests or cash contributions to the capital of the Parent in an amount not less than $5,000,000 (the “Stock Repurchase Investment”). (u) Bi-Weekly Calls. Commencing on the Amendment No. 13 Effective Date, participate in bi-weekly telephone meetings with the Agents and the Lenders (on dates and at times reasonably requested by the Agents). Section 7.02 Negative Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing: (a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired; file or suffer to exist under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof) that names it or any of its Subsidiaries as debtor; sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement (or the equivalent thereof) other than, as to all of the above, Permitted Liens. (b) Indebtedness. Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Subsidiaries to create,
- 152 - 146576709v1146576709v15 incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness other than Permitted Indebtedness. (c) Fundamental Changes; Dispositions. (i) Wind-up, liquidate or dissolve, or enter into any merger, consolidation, amalgamation, reorganization, recapitalization or statutory division (including, without limitation, by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law), or permit any of its Subsidiaries to do (or agree to do) any of the foregoing; provided, however, that any wholly- owned Subsidiary of any Loan Party (other than a Borrower) may be merged into such Loan Party or another wholly-owned Subsidiary of such Loan Party, or may consolidate or amalgamate with another wholly-owned Subsidiary of such Loan Party, so long as (A) no other provision of this Agreement would be violated thereby, (B) such Loan Party gives the Agents at least 30 days' prior written notice of such merger, consolidation or amalgamation accompanied by true, correct and complete copies of all material agreements, documents and instruments relating to such merger, consolidation or amalgamation, including, without limitation, the certificate or certificates of merger or amalgamation to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders' rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, consolidation or amalgamation and (E) the surviving Subsidiary, if any, if not already a Loan Party, is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger, consolidation or amalgamation; or (ii) Make any Disposition, whether in one transaction or a series of related transactions, of all or any part of its business, property or assets, whether now owned or hereafter acquired (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided, however, that any Loan Party and its Subsidiaries may make Permitted Dispositions. (d) Change in Nature of Business. (i) Make, or permit any of its Subsidiaries to make, any change in the nature of its business as described in Section 6.01(l). (ii) Permit the Parent, Mondee Holdings II nor Mondee Brazil to have any material liabilities (other than liabilities arising under the Loan Documents, the Transaction Documents (as defined in the Business Combination Agreement), the Orinter Acquisition Documents, the Interep Acquisition Documents, the Consolid Mexico Acquisition Documents, the Skypass Acquisition Documents, its Equity Interests, applicable securities laws or tax liabilities), own any material assets (other than the Equity Interests of its Subsidiaries) or engage
- 153 - 146576709v1146576709v15 in any operations or business (other than the ownership of its Subsidiaries or relating to or arising out of compliance obligations as a public company). (e) Loans, Advances, Investments, Etc. Make or commit or agree to make, or permit any of its Subsidiaries make or commit or agree to make, any Investment in any other Person except for Permitted Investments. (f) Sale and Leaseback Transactions. Enter into, or permit any of its Subsidiaries to enter into, any Sale and Leaseback Transaction. (g) [Intentionally Omitted]. (h) Restricted Payments. Make or permit any of its Subsidiaries to make any Restricted Payment other than Permitted Restricted Payments. (i) Federal Reserve Regulations. Permit any Loan or the proceeds of any Loan under this Agreement to be used for any purpose that would cause such Loan to be a margin loan under the provisions of Regulation T, U or X of the Board. (j) Transactions with Affiliates. Enter into, renew, extend or be a party to, or permit any of its Subsidiaries to enter into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except (i) transactions consummated in the ordinary course of business in a manner and to an extent consistent with past practice and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm's length transaction with a Person that is not an Affiliate thereof, and that are fully disclosed to the Agents prior to the consummation thereof, if they involve one or more payments by the Parent or any of its Subsidiaries in excess of $500,000 for any single transaction or series of related transactions, (ii) transactions with another Loan Party, (iii) transactions permitted by Section 7.02(e) and Section 7.02(g), (iv) sales of Qualified Equity Interests of the Parent to Affiliates of the Parent not otherwise prohibited by the Loan Documents and the granting of registration and other customary rights in connection therewith, (v) transactions between a Loan Party and a Foreign Subsidiary of the Parent or Metaminds, so long as such transactions are (A) entered into between such Loan Party and such Foreign Subsidiary or Metaminds in the ordinary course of business on terms no less favorable to such Loan Party than would be obtainable in a comparable arm's length transaction with a Person that is not an Affiliate thereof, (B) made pursuant to pricing arrangements between such Loan Party and such Foreign Subsidiary or Metaminds that are (except to the extent a Loan Party is required to pay a higher price in conformance with legal requirements of the jurisdiction in which such Foreign Subsidiary or Metaminds operates) based solely on the costs incurred by such Foreign Subsidiary or Metaminds, and (C) limited to amounts required to be paid pursuant to a service agreement or similar documented arrangement (as in effect after the later of 6 months after the Effective Date or (in the case of Foreign Subsidiaries formed or acquired after the Effective Date) 6 months after such Foreign Subsidiary became a Subsidiary of the Parent) setting forth the terms of such transactions, (vi) any payments pursuant to a tax sharing agreement between a Borrower and any other Person with which such Borrower files a consolidated, combined, or
- 154 - 146576709v1146576709v15 unitary return or with which such Borrower is part of a consolidated group for consolidated, combined or unitary tax purpose, only to the extent necessary to pay Taxes with respect to the income of such other Person, (vii) reasonable and customary director and officer compensation (including bonuses and stock option programs), benefits and indemnification arrangements, in each case approved by the Board of Directors (or a committee thereof) of such Loan Party or such Subsidiary, and (viii) any transaction described on Schedule 7.02(j). (k) Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries. Create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of any Loan Party (i) to pay dividends or to make any other distribution on any shares of Equity Interests of such Subsidiary owned by any Loan Party or any of its Subsidiaries, (ii) to pay or prepay or to subordinate any Indebtedness owed to any Loan Party or any of its Subsidiaries, (iii) to make loans or advances to any Loan Party or any of its Subsidiaries or (iv) to transfer any of its property or assets to any Loan Party or any of its Subsidiaries, or permit any of its Subsidiaries to do any of the foregoing; provided, however, that nothing in any of clauses (i) through (iv) of this Section 7.02(k) shall prohibit or restrict compliance with: (A) this Agreement and the other Loan Documents; (B) any agreement in effect on the date of this Agreement and described on Schedule 7.02(k), or any extension, replacement or continuation of any such agreement; provided, that, any such encumbrance or restriction contained in such extended, replaced or continued agreement is no less favorable to the Agents and the Lenders than the encumbrance or restriction under or pursuant to the agreement so extended, replaced or continued; (C) any applicable law, rule or regulation (including, without limitation, applicable currency control laws and applicable state, provincial or territorial corporate statutes restricting the payment of dividends in certain circumstances); (D) in the case of clause (iv), (1) customary restrictions on the subletting, assignment or transfer of any specified property or asset set forth in a lease, license, asset sale agreement or similar contract for the conveyance of such property or asset and (2) instrument or other document evidencing a Permitted Lien (or the Indebtedness secured thereby) from restricting on customary terms the transfer of any property or assets subject thereto; (E) customary restrictions on dispositions of real property interests in reciprocal easement agreements; (F) customary restrictions in agreements for the sale of assets on the transfer or encumbrance of such assets during an interim period prior to the closing of the sale of such assets; or (G) customary restrictions in contracts that prohibit the assignment of such contract.
- 155 - 146576709v1146576709v15 (l) Limitations on Negative Pledges. Enter into, incur or permit to exist, or permit any Subsidiary to enter into, incur or permit to exist, directly or indirectly, any agreement, instrument, deed, lease or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Loan Party or any Subsidiary of any Loan Party to create, incur or permit to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, or that requires the grant of any security for an obligation if security is granted for another obligation, except the following: (i) this Agreement and the other Loan Documents, (ii) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by Section 7.02(b) of this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (iii) any customary restrictions and conditions contained in agreements relating to the sale or other disposition of assets or of a Subsidiary pending such sale or other disposition; provided that such restrictions and conditions apply only to the assets or Subsidiary to be sold or disposed of and such sale or disposition is permitted hereunder, and (iv) customary provisions in leases restricting the assignment or sublet thereof. (m) Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc. (i) Amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions of any of its or its Subsidiaries' Indebtedness (other than, solely to the extent required by applicable law, any CARES Act Indebtedness, CEBA Indebtedness or HASCAP Indebtedness) or of any instrument or agreement (including, without limitation, any purchase agreement, indenture, loan agreement or security agreement) relating to any such Indebtedness if such amendment, modification or change would shorten the final maturity or average life to maturity of, or require any payment to be made earlier than the date originally scheduled on, such Indebtedness, would increase the interest rate applicable to such Indebtedness, would add any covenant or event of default, would change the subordination provision, if any, of such Indebtedness, or would otherwise be adverse to the Lenders or the issuer of such Indebtedness in any respect; (ii) except for the Obligations (and other than any CARES Act Indebtedness, CEBA Indebtedness or HASCAP Indebtedness, in each case solely to the extent required by applicable law), (A) make any voluntary or optional payment (including, without limitation, any payment of interest in cash that, at the option of the issuer, may be paid in cash or in kind), prepayment, redemption, defeasance, sinking fund payment or other acquisition for value of any of its or its Subsidiaries' Indebtedness (including, without limitation, by way of depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such Indebtedness when due), (B) refund, refinance, replace or exchange any other Indebtedness for any such Indebtedness (other than with respect to Permitted Refinancing Indebtedness), (C) make any payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of any Subordinated Indebtedness in violation of the subordination provisions thereof or any subordination agreement with respect thereto, or (D) make any payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of any Indebtedness as a result of any asset sale, change of control, issuance and sale of debt or equity securities or similar event, or give any notice with respect to any of the foregoing;
- 156 - 146576709v1146576709v15 (iii) amend, modify or otherwise change any of its Governing Documents (including, without limitation, by the filing or modification of any certificate of designation, or any agreement or arrangement entered into by it) with respect to any of its Equity Interests (including any shareholders' agreement), or enter into any new agreement with respect to any of its Equity Interests, except any such amendments, modifications or changes or any such new agreements or arrangements pursuant to this clause (iii) that either individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect, provided that no such amendment, modification or change or new agreement or arrangement shall (A) provide for any plan of division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any similar statute or provision under applicable law) or, (B) with respect to the Parent Operating Agreement or any other Governing Document of the Parent, provide any additional voting rights thereunder to any class of units issued thereunder other than the Parent Class A Units and the Parent Class B Units; or, or (C) with respect to the Preferred COD, amend, modify or otherwise change Section 4, 8, 10 or 11 of the Preferred COD in a manner that would be adverse to the Parent or any of its Subsidiaries or any Agent or any Lender without the prior written consent of the Administrative Agent; or (iv) agree to any amendment, modification or other change to or waiver of any of its rights under any Falcon Acquisition Document, any Kilimanjaro Acquisition Document, any Rocketrip Acquisition Document, any Orinter Acquisition Document, any Interep Acquisition Document, any Consolid Mexico Acquisition Document, any Skypass Acquisition Document or any other Material Contract (including, without limitation, any other acquisition document executed or delivered in connection with a Permitted Acquisition) if such amendment, modification, change or waiver would be adverse in any material respect to any Loan Party or any of its Subsidiaries or the Agents and the Lenders. (n) Investment Company Act of 1940. Engage in any business, enter into any transaction, use any securities or take any other action or permit any of its Subsidiaries to do any of the foregoing, that would cause it or any of its Subsidiaries to become subject to the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company” not entitled to an exemption within the meaning of such Act. (o) ERISA; Canadian Pension Plans. (i) ERISA. Except as could not reasonably be expected to have a Material Adverse Effect, (A) cause or fail to prevent, or permit any of its ERISA Affiliates to cause or fail to prevent, an ERISA Event, or (B) adopt, or permit any of its ERISA Affiliates to adopt, any employee welfare benefit plan within the meaning of Section 3(1) of ERISA that provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or other Requirements of Law. (ii) Canadian Pension Plans. (A) Maintain, sponsor, administer, contribute to, participate in or assume or incur any liability in respect of any Canadian DB Pension Plan, or
- 157 - 146576709v1146576709v15 acquire an interest in any Person if such Person sponsors, administers, contributes to, participates in or has any liability in respect of, any Canadian DB Pension Plan. (B) Contribute to or assume any obligation to contribute to any new “multi-employer pension plan” as such term is defined in the Pension Benefits Act (Ontario) or any similar plan under pension standards laws in another jurisdiction. (C) Fail to withhold, make, remit or pay when due or permit any other Loan Party to fail to withhold, make, remit or pay when due any material withheld employee or employer payments, material contributions or premiums to or in respect of any Canadian Pension Plan or Canadian Benefit Plan pursuant to the terms of the particular plan, any applicable collective bargaining agreement or participation agreement or applicable laws. (p) Environmental. Permit the use, handling, generation, storage, treatment, Release or disposal of Hazardous Materials at any property owned, leased or operated by it or any of its Subsidiaries, except in compliance with Environmental Laws (other than any noncompliance that could not reasonably be expected to result in any material Environmental Claim or Environmental Liability). (q) Accounting Methods. Modify or change, or permit any of its Subsidiaries to modify or change, its method of accounting or accounting principles (including, without limitation, accounting for the capitalization of software costs) from those utilized in the preparation of the Financial Statements (other than as may be required to conform to GAAP). (r) Sanctioned Persons; Anti-Bribery and Corruption Laws; Anti-Money Laundering Laws. (i) Conduct, nor permit any of its Subsidiaries to conduct, any business or engage in any transaction or deal with or for the benefit of any Sanctioned Person, including the making or receiving of any contribution of funds, goods or services to, from or for the benefit of any Sanctioned Person, that would result in a violation of any Sanctions; or (ii) Use, nor permit any of its Subsidiaries to use, directly or indirectly, any of the proceeds of any Loan, (A) to fund any activities or business of or with any Sanctioned Person, or in any other manner, that would result in a violation of any Sanctions by any Person (including by any Person participating in any Loan, whether as underwriter, advisor, investor or otherwise), (B) for the purpose of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti- Bribery and Corruption Law, or (C) in violation of any Anti-Money Laundering Laws or to fund any activities or business that would violate Anti-Money Laundering Laws. Section 7.03 Financial Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party shall not, unless the Required Lenders shall otherwise consent in writing: (a) Capital Expenditures. Make or permit any of its Subsidiaries to make any Capital Expenditure (by purchase or Capitalized Lease) that would cause the aggregate amount
- 158 - 146576709v1146576709v15 of all Capital Expenditures made by the Loan Parties and their Subsidiaries to exceed $5,280,000 during the Fiscal Year ending December 31, 2021; provided, that in the event that the Borrowers fail to comply with the requirements of this Section 7.03(a) for the Fiscal Year ending December 31, 2021, from and after the day on which financial statements are required to be delivered with respect to the Fiscal Year ending December 31, 2021 until the expiration of the 10th day after the date on which such financial statements are required to be delivered, the Parent shall have the right to issue Qualified Equity Interests for cash or otherwise receive cash contributions to the capital of the Parent in an amount equal to the excess Capital Expenditures for such Fiscal Year (each, a “CapEx Equity Contribution”), and in each case, to contribute such cash to the capital of the Borrowers (the “CapEx Cure Right”); provided that (i) such proceeds are actually received by the Borrowers no later than 10 days after the date on which financial statements are required to be delivered with respect to the Fiscal Year ending December 31, 2021, (ii) such proceeds do not exceed the aggregate amount of Capital Expenditures in excess of $5,280,000 for such Fiscal Year, and (iii) such proceeds shall be applied to prepay the Loans in accordance with Section 2.05(c)(v). After application of the proceeds of the CapEx Equity Contribution in accordance with this Section 7.03(a), the Borrowers shall be deemed to have satisfied the requirements of this Section as of the relevant date of determination with the same effect as though there had been no failure to comply on such date, and the breach or default of this Section 7.03(a) that had occurred shall be deemed cured for purposes of this Agreement. The parties hereby acknowledge that this Section may not be relied on for purposes of calculating any financial ratios other than as applicable to this Section 7.03(a) and shall not result in any adjustment to any amounts other than the amount of Capital Expenditures referred to in the immediately preceding sentence. Neither any Agent nor any Lender may take any action to foreclose on, or take possession of, the Collateral, accelerate any Obligations, terminate any Commitments or otherwise exercise any rights or remedies under Section 9.01 (or under any other Loan Document) or under any applicable laws on the basis of any actual or purported Event of Default in respect of this Section 7.03(a) (and any related Default or Event of Default arising therefrom) until the date that is the earlier of (A) the date on which the right to exercise the CapEx Cure Right has expired without the CapEx Cure Right having been exercised and (B) the date that the Administrative Agent receives notice from an Authorized Officer of the Loan Parties that the CapEx Cure Right will not be exercised for the applicable period; provided, that during such time, no Lender shall be required to make a Loan hereunder. (b) Minimum UnadjustedConsolidated EBITDA Less CapEx. Permit Unadjustedthe result of (i) Consolidated EBITDA of the Parent and its Subsidiaries for any period of 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which the last Fiscal Quarter ends on a date set forth below minus (ii) the aggregate amount of Capital Expenditures of the Parent and its Subsidiaries for such period, to be less than the amount set forth opposite such date: Fiscal Quarter End 4 Fiscal Quarters ending December 31, 20222024 UnadjustedConsolidated EBITDA Minus Capital Expenditures $11,840,00010,000,000
- 159 - 146576709v1146576709v15 Fiscal Quarter End UnadjustedConsolidated EBITDA Minus Capital Expenditures 4 Fiscal Quarter ending March 31, 20232025 $17,040,00015,000,000 4 Fiscal Quarters ending June 30, 20232025 $22,118,00020,567,790 4 Fiscal Quarters ending $28,857,000 September 30, 20232025 23,936,709 4 Fiscal Quarters ending December 31, 20232025 $36,085,00028,256,108 March 31, 2026 $29,483,790 June 30, 2026 $29,796,368 September 30, 2026 $30,203,515 December 31, 2026 $30,388,914 March 31, 2027 $30,922,990 June 30, 2027 $31,484,730 September 30, 2027 $32,031,482 December 31, 2027 $32,628,359 March 31, 2028 $33,189,139 June 30, 2028 $33,778,967 The parties hereby acknowledge that after the Amendment No. 11 Effective Date through the Termination Date, the financial covenant set forth in this Section 7.03(b) shall not be measured, other than in connection with the provisions of Section 7.02 hereof. For the avoidance of doubt, after the Amendment No. 11 Effective Date, the Loan Parties shall continue to deliver the Compliance Certificate pursuant to Section 7.01(a)(iv) simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by Section 7.01(a). (c) Leverage Ratio. Permit the Leverage Ratio of the Parent and its Subsidiaries as of the last day of any period of 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which the last Fiscal Quarter ends on a date set forth below to be greater than the applicable ratio set forth opposite such date:
- 160 - 146576709v1146576709v15 Fiscal Quarter End MarchDecember 31, 2024 and each Fiscal Quarter ending thereafter Leverage Ratio 3.257.50 to 1.00 The parties hereby acknowledge that after the Amendment No. 11 Effective Date through the Termination Date, the financial covenant set forth in this Section 7.03(c) shall not be measured, other than in connection with the calculation of the Excess Cash Flow in accordance with the terms of Section 2.05(c)(i) and in connection with the provisions of Section 7.02 hereof. For the avoidance of doubt, after the Amendment No. 11 Effective Date, the Loan Parties shall continue to deliver the Compliance Certificate pursuant to Section 7.01(a)(iv) simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by Section 7.01(a). (d) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio of the Parent and its Subsidiaries as of the last day of any period of 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which the last Fiscal Quarter ends on a date set forth below to be less than the applicable ratio set forth opposite such date: March 31, 2025 6.25 to 1.00 June 30, 2025 5.50 to 1.00 September 30, 2025 5.00 to 1.00 December 31, 2025 4.75 to 1.00 March 31, 2026 4.50 to 1.00 June 30, 2026 4.50 to 1.00 September 30, 2026 4.50 to 1.00 December 31, 2026 4.50 to 1.00 March 31, 2027 4.50 to 1.00 June 30, 2027 4.50 to 1.00 September 30, 2027 4.50 to 1.00 December 31, 2027 4.25 to 1.00 March 31, 2028 4.25 to 1.00 June 30, 2028 4.00 to 1.00
- 161 - 146576709v1146576709v15 Fiscal Quarter End Fixed Charge Coverage Ratio September 30, 2023December 31, 2024 March 31, 2025 June 30, 2025 1.000.75 to 1.00 0.90 to 1.00 0.95 to 1.00 September 30, 2025 0.95 to 1.00 December 31, 2025 0.95 to 1.00 March 31, 2026 0.95 to 1.00 June 30, 2026 1.00 to 1.00 September 30, 2026 1.00 to 1.00 December 31, 20232026 1.00 to 1.00 March 30, 2024 and each Fiscal Quarter ending thereafter31, 2027 1.501.00 to 1.00 June 30, 2027 1.00 to 1.00 September 30, 2027 1.00 to 1.00 December 31, 2027 1.00 to 1.00 March 31, 2028 1.00 to 1.00 June 30, 2028 1.00 to 1.00 The parties hereby acknowledge that after the Amendment No. 11 Effective Date through the Termination Date, the financial covenant set forth in this Section 7.03(d) shall not be measured, other than in connection with the provisions of Section 7.02 hereof. For the avoidance of doubt, after the Amendment No. 11 Effective Date, the Loan Parties shall continue to deliver the Compliance Certificate pursuant to Section 7.01(a)(iv) simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by Section 7.01(a). (e) Liquidity. For the period commencing on January 1, 2024 through the Termination Date, (i)(i) commencing on the Amendment No. 21 Effective Date through and including December 31, 2024, permit the unrestricted cash and Cash Equivalents (minus the aggregate amount of all trade payables or other amounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables (excluding (A) Excess Payables identified to the Agents in writing prior to the Amendment No. 12 Effective Date and agreed to
- 162 - 146576709v1146576709v15 in writing by the Agents to be excluded in “Excess Payables” solely for purposes of this Section
- 163 - 146576709v1146576709v15 7.03(e)(i)) and (B) additional Excess Payables in an aggregate amount not to exceed $5,600,000) of the Parent and its Subsidiaries to be less than $15,000,00010,000,000 for any period of five (5) consecutive Business Days orand (ii) commencing on January 1, 2025 and thereafter, permit the Qualifiedunrestricted cash and Cash Equivalents (minus the aggregate amount of all trade payables or other amounts payable of the Loan Parties and their Subsidiaries at such time that constitute Excess Payables (excluding (A) Excess Payables identified to the Agents in writing prior to the Amendment No. 12 Effective Date and agreed to in writing by the Agents to be excluded in “Excess Payables” solely for purposes of this Section 7.03(e)(ii))) of the Loan Parties and (B) during the period from January 1, 2025 through and including March 31, 2025, additional Excess Payables in an aggregate amount not to exceed $2,800,000) of the Parent and its Subsidiaries to be less than $9,000,00012,500,000 for any period of five (5) consecutive Business Days. ARTICLE VIII CASH MANAGEMENT ARRANGEMENTS AND OTHER COLLATERAL MATTERS Section 8.01 Cash Management Arrangements. (a) The Loan Parties shall (i) establish and maintain cash management services of a type and on terms reasonably satisfactory to the Administrative Agent at one or more of the banks set forth on Schedule 8.01 (each a “Cash Management Bank”) and (ii) except as otherwise provided under Section 8.01(b), deposit or cause to be deposited promptly, and in any event no later than 3 Business Days after the date of receipt thereof, all proceeds in respect of any Collateral, all Collections (of a nature susceptible to a deposit in a bank account) and all other amounts received by any Loan Party (including payments made by Account Debtors directly to any Loan Party) into a Cash Management Account. (b) On or prior to the Control Agreement Deadline, the Loan Parties shall, with respect to each Cash Management Account (other than Excluded Accounts), deliver to the Administrative Agent a Control Agreement with respect to such Cash Management Account. The Loan Parties shall not maintain, and shall not permit any of their Subsidiaries to maintain, cash, Cash Equivalents or other amounts in any deposit account or securities account after the Control Agreement Deadline, unless the Administrative Agent shall have received a Control Agreement in respect of each such Cash Management Account (other than Excluded Accounts). (c) Upon the terms and subject to the conditions set forth in a Control Agreement with respect to a Cash Management Account, all amounts received in such Cash Management Account shall at the Administrative Agent's direction be wired each Business Day into the Administrative Agent's Account, except that, so long as no Event of Default has occurred and is continuing, the Administrative Agent will not direct the Cash Management Bank to transfer funds in such Cash Management Account to the Administrative Agent's Account. (d) So long as no Default or Event of Default has occurred and is continuing, the Borrowers may amend Schedule 8.01 to add or replace a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management Bank shall be reasonably satisfactory to the Administrative Agent and the Administrative Agent shall
- 164 - 146576709v1146576709v15 have consented in writing in advance to the opening of such Cash Management Account with the prospective Cash Management Bank, and (ii) prior to the time of the opening of such Cash Management Account, each Loan Party and such prospective Cash Management Bank shall have executed and delivered to the Administrative Agent a Control Agreement. ARTICLE IX EVENTS OF DEFAULT Section 9.01 Events of Default. Each of the following events shall constitute an event of default (each, an “Event of Default”): (a) any Borrower shall (i) fail to pay, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), (A) any interest on any Loan, any Agent Advance or any fee, indemnity or other amount payable under this Agreement (other than any portion thereof constituting principal of the Loans) or any other Loan Document, and such failure continues for a period of 3 Business Days or (B) all or any portion of the principal of the Loans or (ii) fail to make the prepayment of the Term Loan specified in the SPAC Prepayment Notice delivered to the Administrative Agent in the amount or on the date set forth in such notice; (b) any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under or in connection with any Loan Document or under or in connection with any certificate or other writing delivered to any Secured Party pursuant to any Loan Document shall have been incorrect in any material respect (or in any respect if such representation or warranty is qualified or modified as to materiality or “Material Adverse Effect” in the text thereof) when made or deemed made; (c) (i) any Loan Party shall fail to perform or comply with any covenant or agreement contained in Section 7.01(a), Section 7.01(c), Section 7.01(d), Section 7.01(f), Section 7.01(k), Section 7.01(m), Section 7.01(r), Section 7.01(s), Section 7.01(u), Section 7.02 or Section 7.03 or Article VIII, or any Loan Party shall fail to perform or comply with any covenant or agreement contained in any Security Agreement to which it is a party, any Brazil Security Document to which it is a party, any Mexican Security Document to which it is a party or any Mortgage to which it is a party, (ii) any Loan Party shall fail to perform or comply with any covenant or agreement contained in Section 7.01(t) and such failure, in the case of this subclause (ii), shall remain unremedied for 7 days or (iii) any Loan Party shall fail to perform or comply with any covenant or agreement contained in Section 7.01(h) and such failure, in the case of this subclause (iii), if capable of being remedied, shall remain unremedied for 10 days after the earlier of the date a senior officer of any Loan Party has knowledge of such failure and the date written notice of such default shall have been given by the Administrative Agent to such Loan Party; (d) any Loan Party shall fail to perform or comply with any other term, covenant or agreement contained in any Loan Document to be performed or observed by it and, except as set forth in subsections (a), (b) and (c) of this Section 9.01, such failure, if capable of being remedied, shall remain unremedied for 15 days after the earlier of the date a senior officer
- 165 - 146576709v1146576709v15 of any Loan Party has knowledge of such failure and the date written notice of such default shall have been given by the Administrative Agent to such Loan Party; (e) any Loan Party or any of its Subsidiaries shall fail to pay when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any principal, interest or other amount payable in respect of Indebtedness (excluding Indebtedness evidenced by this Agreement or any Loan Document) having an aggregate amount outstanding in excess of $2,500,000, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or any other default under any agreement or instrument relating to any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; (f) any Loan Party or any of its Subsidiaries (i) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, interim receiver, receiver and manager, monitor, trustee, custodian or other similar official for any such Person or for any substantial part of its property, (ii) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, (iii) shall make a general assignment for the benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set forth above in this subsection (f); (g) any proceeding shall be instituted against any Loan Party or any of its Subsidiaries under any Debtor Relief Law seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, interim receiver, receiver and manager, monitor, trustee, custodian or other similar official for any such Person or for any substantial part of its property, and either such proceeding shall remain undismissed or unstayed for a period of 30 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against any such Person or the appointment of a receiver, interim receiver, receiver and manager, monitor, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; (h) any material provision of any Loan Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against any Loan Party intended to be a party thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by any Loan Party or any Governmental Authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or any Loan Party shall deny in writing that it has any liability or obligation purported to be created under any Loan Document;
- 166 - 146576709v1146576709v15 (i) any Security Agreement, any Brazil Security Document, any Mexican Security Document, any Mortgage or any other security document, after delivery thereof pursuant hereto, shall for any reason fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties on any Collateral having a fair market value in excess of $5,000,000 purported to be covered thereby; (j) one or more judgments, orders or awards (or any settlement of any litigation or other proceeding that, if breached, could result in a judgment, order or award) for the payment of money exceeding $2,500,000 in the aggregate (except to the extent fully covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has been notified and has not denied coverage) shall be rendered against any Loan Party or any of its Subsidiaries and remain unsatisfied and (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment, order, award or settlement or (ii) there shall be a period of 20 consecutive days after entry thereof during which (A) a stay of enforcement thereof is not be in effect or (B) the same is not vacated, discharged, stayed or bonded pending appeal; (k) any Loan Party or any of its Subsidiaries is enjoined, restrained or in any way prevented by the order of any court or any Governmental Authority from conducting, or otherwise ceases to conduct for any reason whatsoever, all or any material part of its business for a period which materially and adversely affects the ability of such Person to continue its business on a profitable basis; (l) any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes for a period of more than 5 days the cessation or substantial curtailment of revenue producing activities at any facility of any Loan Party, if any such event or circumstance could reasonably be expected to have a Material Adverse Effect; (m) the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Loan Party or any of its Subsidiaries, if such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material Adverse Effect; (n) the indictment, or the threatened indictment of any Loan Party or any of its Subsidiaries under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against any Loan Party or any of its Subsidiaries pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture to any Governmental Authority of any material portion of the property of such Person; (o) (i) there shall occur one or more ERISA Events that individually or in the aggregate results in, or could reasonably be expected to result in, liability of any Loan Party or any of its ERISA Affiliates in excess of $2,500,000, (ii) there exists any fact or circumstance that could reasonably be expected to result in the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or Section 4068 of ERISA upon the property or rights to property of any Loan Party or any of its ERISA Affiliates, or (iii) one or more Foreign Plan Events shall
- 167 - 146576709v1146576709v15 have occurred that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (p) (i) there shall occur and be continuing any “Event of Default” (or any comparable term) under, and as defined in the documents evidencing or governing any Subordinated Indebtedness, (ii) any of the Obligations for any reason shall cease to be “Senior Indebtedness” or “Designated Senior Indebtedness” (or any comparable terms) under, and as defined in the documents evidencing or governing any Subordinated Indebtedness, (iii) any Indebtedness other than the Obligations shall constitute “Designated Senior Indebtedness” (or any comparable term) under, and as defined in, the documents evidencing or governing any Subordinated Indebtedness, (iv) any holder of Subordinated Indebtedness shall fail to perform or comply with any of the subordination provisions of the documents evidencing or governing such Subordinated Indebtedness, or (v) the subordination provisions of the documents evidencing or governing any Subordinated Indebtedness shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable Subordinated Indebtedness; (q) [reserved]a Refinancing Milestone Event shall have occurred; or (r) a Change of Control shall have occurred; or (s) any Loan Party or any of its Subsidiaries shall lose, fail to keep in force, suffer the termination (prior to the scheduled expiration thereof), suspension or revocation of, or terminate (prior to the scheduled expiration thereof), forfeit, or suffer a material adverse amendment to: (i) if the Leverage Ratio of the Parent and its Subsidiaries (calculated using the Consolidated EBITDA of the Parent and its Subsidiaries measured for the most recent 4 consecutive Fiscal Quarters of the Parent and its Subsidiaries for which financial statements of the Parent and its Subsidiaries have been (or are required to have been) received by the Administrative Agent pursuant to Section 7.01(a) and the Indebtedness of the Parent and its Subsidiaries as of the date of such termination, suspension, revocation, forfeiture or material adverse amendment) exceeds 3.25 to 1.00, the American Express Contract during any American Express Material Contract Period; (ii) two or more Specified Material Contracts over any 12 calendar month period, if the effect thereof would be to (A) reduce domestic or international per segment charges thereunder by more than 10%, (B) change the timing of payments thereunder or (C) result in the termination thereof; or (t) the Parent or any of its Subsidiaries shall default in the observance or performance of any term, provision or agreement contained in the Preferred COD that is, directly or indirectly, incorporated by reference from, or derivative of any term, provision or agreement contained in, the Financing Agreement or any other Loan Document, and such default shall continue unremedied beyond, or shall not be waived by holders of a majority of the Series A Preferred Stock prior to the expiration of, the applicable grace or cure period therefor in the Preferred COD;
- 168 - 146576709v1146576709v15 then, and in any such event, the Administrative Agent may, and shall at the request of the Required Lenders, by notice to the Administrative Borrower, (i) terminate or reduce all Commitments, whereupon all Commitments shall immediately be so terminated or reduced, (ii) declare all or any portion of the Loans then outstanding to be accelerated and due and payable, whereupon all or such portion of the aggregate principal of all Loans, all accrued and unpaid interest thereon, all fees and all other amounts payable under this Agreement and the other Loan Documents (including, without limitation, the Applicable Premium) shall become due and payable immediately, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Loan Party and (iii) exercise any and all of its other rights and remedies under applicable law, hereunder and under the other Loan Documents; provided, however, that upon the occurrence of any Event of Default described in subsection (f) or (g) of this Section 9.01 with respect to any Loan Party, without any notice to any Loan Party or any other Person or any act by any Agent or any Lender, all Commitments shall automatically terminate and all Loans then outstanding, together with all accrued and unpaid interest thereon, all fees and all other amounts due under this Agreement and the other Loan Documents (including, without limitation, the Applicable Premium) shall be accelerated and become due and payable automatically and immediately, without presentment, demand, protest or notice of any kind, all of which are expressly waived by each Loan Party. Section 9.02 Cure Right. In the event that the Borrowers fail to comply with the requirements of any financial covenant set forth in clause (b), (c) or (d) of Section 7.03, from and after the day on which financial statements are required to be delivered with respect to the applicable Fiscal Quarter hereunder until the expiration of the 10th day after the date on which financial statements are required to be delivered with respect to such Fiscal Quarter, the Parent shall have the right to issue Permitted Cure Equity for cash or otherwise receive cash contributions to the capital of the Parent, and, in each case, to contribute any such cash to the capital of the Borrowers, and apply the amount of the proceeds thereof to increase Consolidated EBITDA and Unadjusted EBITDA with respect to such applicable Fiscal Quarter (the “Cure Right”); provided that (a) such proceeds are actually received by the Borrowers no later than 10 days after the date on which financial statements are required to be delivered with respect to such Fiscal Quarter, (b) such proceeds do not exceed the aggregate amount necessary to cure (by addition to Consolidated EBITDA or Unadjusted EBITDA, as applicable) such Event of Default under Section 7.03 for such period, (c) the Cure Right shall not be exercised more than 5 times during the term of the Loans, (d) in each period of four Fiscal Quarters, there shall be at least 2 consecutive Fiscal Quarters during which the Cure Right is not exercised, (e) such proceeds shall be applied to prepay the Loans in accordance with Section 2.05(c)(v), and (f) there shall be no pro forma reduction in Indebtedness with the proceeds of the Cure Right for purposes of determining compliance with the financial covenants in Section 7.03 or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case, in the Fiscal Quarter in which the Cure Right is used or subsequent periods that include such Fiscal Quarter. If, after giving effect to the foregoing pro forma adjustment (but not, for the avoidance of doubt, giving pro forma adjustment to any repayment of Indebtedness in connection therewith), the Borrowers are in compliance with the applicable financial covenants set forth in Section 7.03, the Borrowers shall be deemed to have satisfied the requirements of such Section as of the relevant date of determination with the same effect as though there had been no failure to comply on such date, and the applicable breach or default of such Section 7.03 that had occurred shall be deemed cured for purposes of this Agreement. The
- 169 - 146576709v1146576709v15 parties hereby acknowledge that this Section may not be relied on for purposes of calculating any financial ratios other than as applicable to Section 7.03 and shall not result in any adjustment to any amounts other than the amount of the Consolidated EBITDA and Unadjusted EBITDA referred to in the immediately preceding sentence. Neither any Agent nor any Lender may take any action to foreclose on, or take possession of, the Collateral, accelerate any Obligations, terminate any Commitments or otherwise exercise any rights or remedies under Section 9.01 (or under any other Loan Document) or under any applicable laws on the basis of any actual or purported Event of Default in respect of Section 7.03(b), (c) or (d) (and any related Default or Event of Default arising therefrom) until the date that is the earlier of (i) the date on which the right to exercise the Cure Right has expired without the Cure Right having been exercised and (ii) the date that the Administrative Agent receives notice from an Authorized Officer of the Loan Parties that the Cure Right will not be exercised for the applicable period; provided, that during such time, no Lender shall be required to make a Loan hereunder. ARTICLE X AGENTS Section 10.01 Appointment. (a) Each Lender (and each subsequent maker of any Loan by its making thereof) hereby irrevocably appoints, authorizes and empowers the Administrative Agent to perform the duties of the Administrative Agent as set forth in this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto, including: (i) to receive on behalf of each Lender any payment of principal of or interest on the Loans outstanding hereunder and all other amounts accrued hereunder for the account of the Lenders and paid to such Agent and to distribute promptly to each Lender its Pro Rata Share of all payments so received; (ii) to distribute to each Lender copies of all material notices and agreements received by the Administrative Agent and not required to be delivered to each Lender pursuant to the terms of this Agreement, provided that the Agents shall not have any liability to the Lenders for any Agent's inadvertent failure to distribute any such notices or agreements to the Lenders; (iii) to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, and related matters and to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (iv) to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to this Agreement or any other Loan Document; (v) to make the Loans and Agent Advances, for such Agent or on behalf of the applicable Lenders as provided in this Agreement or any other Loan Document; (vi) to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Loan Parties, the Obligations, or otherwise related to any of same to the extent reasonably incidental to the exercise by such Agent of the rights and remedies specifically authorized to be exercised by such Agent by the terms of this Agreement or any other Loan Document; (vii) to incur and pay such fees necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Loan Document; (viii) subject to Section 10.03, to take such action as such Agent deems appropriate on its behalf to administer the Loans and the Loan Documents and to exercise such other powers delegated to such Agent
- 170 - 146576709v1146576709v15 by the terms hereof or the other Loan Documents (including, without limitation, the power to give or to refuse to give notices, waivers, consents, approvals and instructions and the power to make or to refuse to make determinations and calculations); and (ix) to act with respect to all Collateral under the Loan Documents, including 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. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including, without limitation, enforcement or collection of the Loans), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders or the Required Term Loan Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), and such instructions of the Required Lenders or the Required Term Loan Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) shall be binding upon all Lenders and all makers of Loans; provided, however, the Administrative Agent shall not be required to take any action which, in the reasonable opinion of such Agent, exposes such Agent to liability or which is contrary to this Agreement or any other Loan Document or applicable law. (b) Each Lender (and each subsequent maker of any Loan by its making thereof) hereby irrevocably appoints, authorizes and empowers the Revolving Agent to perform its duties as set forth in this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto, including: (i) to receive on behalf of each Revolving Loan Lender any payment of principal of or interest on the Revolving Loans outstanding hereunder and all other amounts accrued hereunder for the account of the Revolving Loan Lenders and paid to the Revolving Agent, and, subject to Section 2.02 of this Agreement, to distribute promptly to each Revolving Loan Lender its Pro Rata Share of all payments so received; (ii) to distribute to each Revolving Loan Lender copies of all material notices and agreements received by the Revolving Agent and not required to be delivered to each Revolving Loan Lender pursuant to the terms of this Agreement, provided, that the Revolving Agent shall not have any liability to the Lenders for its inadvertent failure to distribute any such notices or agreements to the Lenders; (iii) to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Revolving Loans, and related matters; (iv) to make the Revolving Loans, for the Revolving Agent or on behalf of the applicable Revolving Loan Lenders as provided in this Agreement or any other Loan Document; (v) to perform, exercise, and enforce any and all other rights and remedies of the Revolving Loan Lenders with respect to the Loan Parties, the Obligations, or otherwise related to any of same to the extent reasonably incidental to the exercise by the Revolving Agent of the rights and remedies specifically authorized to be exercised by the Revolving Agent by the terms of this Agreement or any other Loan Document; (vi) to incur and pay such fees necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Loan Document; and (vii) subject to Section 10.03, to take such action as the Revolving Agent deems appropriate on its behalf to administer the Revolving Loans and the Loan Documents and to exercise such other powers delegated to the Revolving Agent by the terms hereof or the other Loan Documents. As to any matters not expressly provided for by this Agreement and the other Loan Documents, the Revolving Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders or the Required
- 171 - 146576709v1146576709v15 Revolving Loan Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), and such instructions of the Required Lenders or the Required Revolving Loan Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) shall be binding upon all Revolving Loan Lenders; provided, however, the Revolving Agent shall not be required to take any action which, in the reasonable opinion of the Revolving Agent, exposes the Revolving Agent to liability or which is contrary to this Agreement or any other Loan Document or applicable law. Section 10.02 Nature of Duties; Delegation. (a) The Agents shall have no duties or responsibilities except those expressly set forth in this Agreement or in the other Loan Documents. The duties of the Agents shall be mechanical and administrative in nature. The Agents shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any other Loan Document, express or implied, is intended to or shall be construed to impose upon the Agents any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of the Loan Parties in connection with the making and the continuance of the Loans hereunder and shall make its own appraisal of the creditworthiness of the Loan Parties and the value of the Collateral without reliance upon any Agent or any other Lender or any of their Related Parties, and neither the Agents nor any of their Related Parties shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into their possession before the initial Loan hereunder or at any time or times thereafter, provided that, upon the reasonable request of a Lender, each Agent shall provide to such Lender any documents or reports delivered to such Agent by the Loan Parties pursuant to the terms of this Agreement or any other Loan Document. If any Agent seeks the consent or approval of the Required Lenders, the Required Term Loan Lenders or the Required Revolving Loan Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) to the taking or refraining from taking any action hereunder, such Agent shall send notice thereof to each Lender. Each Agent shall promptly notify each Lender any time that the Required Lenders, the Required Term Loan Lenders or the Required Revolving Loan Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) have instructed such Agent to act or refrain from acting pursuant hereto. (b) Each Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any of its Related Parties or any other trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article X to the extent provided by the applicable Agent. Section 10.03 Rights, Exculpation, Etc. The Agents and their Related Parties shall not be liable for any action taken or omitted to be taken by them under or in connection with this Agreement or the other Loan Documents, except for their own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent
- 172 - 146576709v1146576709v15 jurisdiction. Without limiting the generality of the foregoing, the Agents (i) may treat the payee of any Loan as the owner thereof until the applicable Agent receives written notice of the assignment or transfer thereof, pursuant to Section 12.07 hereof, signed by such payee and in form satisfactory to the applicable Agent; (ii) may consult with legal counsel (including, without limitation, counsel to any Agent or counsel to the Loan Parties), independent public accountants, and other experts selected by any of them and shall not be liable for any action taken or omitted to be taken in good faith by any of them in accordance with the advice of such counsel or experts; (iii) make no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Loan Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and (vi) shall not be deemed to have made 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 Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. The Agents shall not be liable for any apportionment or distribution of payments made in good faith pursuant to Section 4.03, and if any such apportionment or distribution is subsequently determined to have been made in error, and the sole recourse of any Lender to whom payment was due but not made shall be to recover from other Lenders any payment in excess of the amount which they are determined to be entitled. The Agents may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents the Agents are permitted or required to take or to grant, and if such instructions are promptly requested, the Agents shall be absolutely entitled to refrain from taking any action or to withhold any approval under any of the Loan Documents until they shall have received such instructions from the Required Lenders, the Required Term Lenders or the Required Revolving Loan Lenders, as applicable (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents). Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Required Lenders, the Required Term Loan Lenders or the Required Revolving Loan Lenders, as applicable (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents). No Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default until it receives written notice from either the Administrative Borrower or the Lenders conspicuously labelled “notice of default.” Section 10.04 Reliance. Each Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper
- 173 - 146576709v1146576709v15 Person, and with respect to all matters pertaining to this Agreement or any of the other Loan Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. Section 10.05 Indemnification. To the extent that any Agent or any Related Party of the foregoing is not reimbursed and indemnified by any Loan Party, and whether or not such Agent has made demand on any Loan Party for the same, the Lenders will, within five days of written demand by such Agent, reimburse such Agent and such Related Parties for and indemnify such Agent and such Related Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, client charges and expenses of counsel or any other advisor to such Agent and such Related Parties), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Agent and the Related Parties in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted by such Agent and such Related Parties under this Agreement or any of the other Loan Documents, in proportion to each Lender's Pro Rata Share, including, without limitation, advances and disbursements made pursuant to Section 10.08; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements for which there has been a final non-appealable judicial determination from a court of competent jurisdiction that such liability resulted from such Agent's or such Related Party’s gross negligence or willful misconduct. The obligations of the Lenders under this Section 10.05 shall survive the payment in full of the Loans and the termination of this Agreement. Section 10.06 Agents Individually. With respect to its Pro Rata Share of the Total Commitment hereunder and the Loans made by it, the applicable Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or maker of a Loan. The terms "Lenders", "Required Lenders", "Required Term Loan Lenders", "Required Revolving Loan Lenders" or any similar terms shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity as a Lender or one of the Required Lenders, one of the Required Term Loan Lenders or one of the Required Revolving Loan Lenders. Each Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with any Borrower as if it were not acting as an Agent pursuant hereto without any duty to account to the other Lenders. Section 10.07 Successor Agent. (a) Any Agent may at any time give at least 30 days prior written notice of its resignation to the Lenders and the Administrative Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Administrative Borrower (which consent of the Administrative Borrower (i) shall not be unreasonably withheld, conditioned or delayed, (ii) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written request therefor, (iii) shall not be required during the continuance of an Event of Default and (iv) shall not be required in connection with the appointment of any Lender as a successor Agent), to appoint a successor Agent for such resigning Agent. If no such successor Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the
- 174 - 146576709v1146576709v15 “Resignation Effective Date”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent. Whether or not a successor Agent has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. (b) With effect from the Resignation Effective Date, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by the retiring Agent on behalf of the Secured Parties under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (ii) all payments, communications and determinations provided to be made by, to or through such retiring Agent shall instead be made by or to each Lender directly, until such time, if any, as a successor Agent shall have been appointed as provided for above. Upon the acceptance of a successor's Agent's appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. After the retiring Agent's resignation hereunder and under the other Loan Documents, the provisions of this Article, Section 12.04 and Section 12.15 shall continue in effect for the benefit of such retiring Agent in respect of any actions taken or omitted to be taken by it while the retiring Agent was acting as Agent. Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing, neither the Required Lenders nor the retiring Agent may appoint as a successor Agent any Disqualified Lender. Section 10.08 Collateral Matters. (a) The Administrative Agent may from time to time make such disbursements and advances (“Agent Advances”) which the Administrative Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Loans that are Reference Rate Loans. The Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Administrative Agent shall notify each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Administrative Agent's demand, in Dollars in immediately available funds, the amount equal to such Lender's Pro Rata Share of each such Agent Advance. If such funds are not made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate for three Business Days and thereafter at the Reference Rate.
- 175 - 146576709v1146576709v15 (b) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral upon termination of the Total Commitment and payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnification Obligations) in accordance with the terms hereof; or constituting property being sold or disposed of in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Lenders in accordance with Section 12.02. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Administrative Agent's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Administrative Agent, the authority to release Collateral conferred upon the Administrative Agent under Section 10.08(b). Upon receipt by the Administrative Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties upon such Collateral; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on terms which, in any Agent's opinion, would expose any Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent for the benefit of the Secured Parties in accordance with the terms thereof, (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Administrative Agent, as agent for and representative of the Secured Parties (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Administrative Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Administrative Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the
- 176 - 146576709v1146576709v15 Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale. (e) The Administrative Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Administrative Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Administrative Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the Administrative Agent's own interest in the Collateral as one of the Lenders and that the Administrative Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein. (f) In furtherance of the foregoing, and for purposes of any Lien on any Collateral governed by the laws of Mexico, each Lender hereby appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted to the Administrative Agent by any Loan Party and/or any Consolid Mexico Subsidiary or Skypass Mexico to secure any of the Obligations, together with such powers as are reasonably incidental thereto. Consequently, for Mexican law purposes, each of the Lenders hereby irrevocably appoints, designates and authorizes the Administrative Agent to act on its behalf as comisionista mercantil con representación pursuant to Articles 273, 274 and other applicable articles of the Commerce Code (Código de Comercio) of Mexico, hereunder and under the other corresponding Loan Documents. Additionally, each of the Lenders authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Furthermore, each of the Lenders hereby authorizes the Administrative Agent to delegate the above mentioned comisión mercantil con representación pursuant to Article 280 and any other applicable articles of the Commerce Code (Código de Comercio) of Mexico to the extent permitted by and under the terms provided in any Loan Document. Section 10.09 Agency for Perfection. Each Agent and each Lender hereby appoints each other Agent and each other Lender as agent and bailee for the purpose of perfecting the security interests in and liens upon the Collateral in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession or control (or where the security interest of a secured party with possession or control has priority over the security interest of another secured party) and each Agent and each Lender hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the Secured Parties as secured party. Should any Agent or any Lender obtain possession or control of any such Collateral, such Agent or such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent's request therefor shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent's instructions. In addition, the Administrative Agent shall also have the power and authority hereunder to appoint such other
- 177 - 146576709v1146576709v15 sub-agents as may be necessary or required under applicable federal, state, provincial or territorial law or otherwise to perform its duties and enforce its rights with respect to the Collateral and under the Loan Documents. Each Loan Party by its execution and delivery of this Agreement hereby consents to the foregoing. Section 10.10 No Reliance on any Agent's Customer Identification Program. Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender's, Affiliate's, participant's or assignee's customer identification program, or other requirements imposed by the USA PATRIOT Act or the regulations issued thereunder, including the regulations set forth in 31 C.F.R. §§ 1010.100(yy), (iii), 1020.100, and 1020.220 (formerly 31 C.F.R. § 103.121), as hereafter amended or replaced (“CIP Regulations”), or any other Anti-Terrorism Laws, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2) any recordkeeping, (3) comparisons with government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or other regulations issued under the USA PATRIOT Act. Each Lender, Affiliate, participant or assignee subject to Section 326 of the USA PATRIOT Act will perform the measures necessary to satisfy its own responsibilities under the CIP Regulations. Section 10.11 No Third Party Beneficiaries. The provisions of this Article are solely for the benefit of the Secured Parties, and no Loan Party shall have rights as a third-party beneficiary of any of such provisions. Section 10.12 No Fiduciary Relationship. It is understood and agreed that the use of the term “agent” herein or in any other Loan Document (or any other similar term) with reference to any 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. Section 10.13 Reports; Confidentiality; Disclaimers. By becoming a party to this Agreement, each Lender: (a) is deemed to have requested that each Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination report with respect to the Parent or any of its Subsidiaries (each, a “Report”) prepared by or at the request of each Agent, and each Agent shall so furnish each Lender with each such Report, (b) expressly agrees and acknowledges that the Agents (i) do not make any representation or warranty as to the accuracy of any Reports, and (ii) shall not be liable for any information contained in any Reports, (c) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any Agent or other party performing any audit or examination will inspect only specific information regarding the Parent and its Subsidiaries and
- 178 - 146576709v1146576709v15 will rely significantly upon the Parent's and its Subsidiaries' books and records, as well as on representations of their personnel, (d) agrees to keep all Reports and other material, non-public information regarding the Parent and its Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 12.19, and (e) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold any Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender's participation in, or the indemnifying Lender's purchase of, a loan or loans of the Borrowers, and (ii) to pay and protect, and indemnify, defend and hold any Agent and any other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys' fees and costs) incurred by any such Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. Section 10.14 Intercreditor Agreement and Subordination Agreement. Each Lender hereby grants to the Administrative Agent all requisite authority to enter into or otherwise become bound by, and to perform its obligations and exercise its rights and remedies under any intercreditor agreement or subordination agreement with respect to Indebtedness to the extent the Administrative Agent is otherwise contemplated as being a party to such intercreditor agreement or subordination agreement, and to bind the Secured Parties thereto by the Administrative Agent's entering into or otherwise becoming bound thereby, and no further consent or approval on the part of any Lender is or will be required in connection with the performance by the Administrative Agent of the any intercreditor agreement or subordination agreement. Section 10.15 Collateral Custodian. Upon the occurrence and during the continuance of any Default or Event of Default, the Administrative Agent or its designee may at any time and from time to time employ and maintain on the premises of any Loan Party a custodian selected by the Administrative Agent or its designee who shall have full authority to do all acts necessary to protect the Agents’ and the Lenders' interests. Each Loan Party hereby agrees to, and to cause its Subsidiaries to, cooperate with any such custodian and to do whatever the Administrative Agent or its designee may reasonably request to preserve the Collateral. All costs and expenses incurred by the Administrative Agent or its designee by reason of the employment of the custodian shall be the responsibility of the Borrowers and charged to the Loan Account. Section 10.16 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 shall then be due and payable as herein expressed or by declaration or otherwise and
- 179 - 146576709v1146576709v15 irrespective of whether any Agent shall have made any demand on the Borrowers) 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 and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties (including any claim for the compensation, expenses, disbursements and advances of the Secured Parties and their respective agents and counsel and all other amounts due the Secured Parties hereunder and under the other Loan Documents) 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 Secured Party 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 Secured Parties, 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 hereunder and under the other Loan Documents. Section 10.17 Erroneous Distribution. If all or any part of any payment or other distribution by or on behalf of any Agent to any Borrower, any Lender or any other Person is determined by such Agent in its sole discretion to have been made in error as determined by such Agent (any such payment or other distribution, an “Erroneous Distribution”), then the relevant Borrower, Lender or other Person shall forthwith on written demand (accompanied by a reasonably detailed calculation of such Erroneous Distribution) repay to such Agent the amount of such Erroneous Distribution received by such Person. Any determination by any Agent, in its sole discretion, that all or a portion of any payment or other distribution to any Borrower, any Lender or any other Person was an Erroneous Distribution shall be conclusive absent manifest error. Each Borrower, each Lender and each other potential recipient of an Erroneous Distribution hereunder waives any claim of discharge for value and any other claim of entitlement to, or in respect of, any Erroneous Distribution. ARTICLE XI GUARANTY Section 11.01 Guaranty. Each Guarantor hereby jointly and severally and unconditionally and irrevocably guarantees the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all Obligations of the Borrowers now or hereafter existing under any Loan Document, whether for principal, interest (including, without limitation, all interest that accrues after the commencement of any Insolvency Proceeding of any Borrower, whether or not a claim for post-filing interest is allowed in such Insolvency Proceeding), fees, commissions, expense reimbursements, indemnifications or otherwise (such obligations, to the extent not paid by the Borrowers, being the “Guaranteed Obligations”), and agrees to pay any
- 180 - 146576709v1146576709v15 and all expenses (including reasonable counsel fees and expenses) incurred by the Secured Parties in enforcing any rights under the guaranty set forth in this Article XI. Without limiting the generality of the foregoing, each Guarantor's liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Borrowers to the Secured Parties under any Loan Document but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Borrower. Notwithstanding any of the foregoing, Guaranteed Obligations shall not include any Excluded Swap Obligations. In no event shall the obligation of any Guarantor hereunder exceed the maximum amount such Guarantor could guarantee under any Debtor Relief Law. Section 11.02 Guaranty Absolute. Each Guarantor jointly and severally guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Secured Parties with respect thereto. Each Guarantor agrees that this Article XI constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort be made by any Agent or any Lender to any Collateral. The obligations of each Guarantor under this Article XI are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any Loan Party or whether any Loan Party is joined in any such action or actions. The liability of each Guarantor under this Article XI shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following: (a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or otherwise; (c) any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Obligations; (d) the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any Person, including, without limitation, any Secured Party; (e) any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of any Loan Party; or (f) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Secured Parties that
- 181 - 146576709v1146576709v15 might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety. This Article XI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by Secured Parties or any other Person upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as though such payment had not been made. Section 11.03 Waiver. Each Guarantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this Article XI and any requirement that the Secured Parties exhaust any right or take any action against any Loan Party or any other Person or any Collateral, (iii) any right to compel or direct any Secured Party to seek payment or recovery of any amounts owed under this Article XI from any one particular fund or source or to exhaust any right or take any action against any other Loan Party, any other Person or any Collateral, (iv) any requirement that any Secured Party protect, secure, perfect or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any Loan Party, any other Person or any Collateral, and (v) any other defense available to any Guarantor. Each Guarantor agrees that the Secured Parties shall have no obligation to marshal any assets in favor of any Guarantor or against, or in payment of, any or all of the Obligations. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 11.03 is knowingly made in contemplation of such benefits. Each Guarantor hereby waives any right to revoke this Article XI, and acknowledges that this Article XI is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future. Section 11.04 Continuing Guaranty; Assignments. This Article XI is a continuing guaranty and shall (a) remain in full force and effect until the later of the cash payment in full of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI and the Final Maturity Date, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Secured Parties and their successors, pledgees, transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender may pledge, assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, its Loans owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted such Lender herein or otherwise, in each case as provided in Section 12.07. Section 11.05 Subrogation. No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor's obligations under this Article XI, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or
- 182 - 146576709v1146576709v15 security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI shall have been paid in full in cash and the Final Maturity Date shall have occurred. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the payment in full in cash of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI and the Final Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Article XI, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Article XI thereafter arising. If (i) any Guarantor shall make payment to the Secured Parties of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Article XI shall be paid in full in cash and (iii) the Final Maturity Date shall have occurred, the Secured Parties will, at such Guarantor's request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment by such Guarantor. Section 11.06 Contribution. All Guarantors desire to allocate among themselves, in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Guarantor shall be entitled to a contribution from each of the other Guarantors in an amount sufficient to cause each Guarantor's Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to any Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Guarantor, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Guarantors multiplied by, (b) the aggregate amount paid or distributed on or before such date by all Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to any Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Guarantor under this Guaranty that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Guarantor for purposes of this Section 11.06, any assets or liabilities of such Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Guarantor. “Aggregate Payments” means, with respect to any Guarantor as of any date of determination, an amount equal to (A) the aggregate amount of all payments and distributions made on or before such date by such Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 11.06), minus (B) the aggregate amount of all payments received on or before such date by such Guarantor from the other Guarantors as contributions under this Section 11.06. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Guarantor. The allocation among Guarantors of their obligations as set forth in this Section 11.06 shall not
- 183 - 146576709v1146576709v15 be construed in any way to limit the liability of any Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 11.06. Section 11.07 Provisions Applicable to Canadian Loan Parties. (a) If any provision of this Agreement or Loan Documents would oblige any Canadian Loan Party to make any payment of interest or other amount (including Guaranteed Obligations) payable to any Lender in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Lender of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by Applicable Law or so result in a receipt by that Lender of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows: first, by reducing the amount or rate of interest, and, thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada). Any amount or rate of interest referred to in this Section shall be determined in accordance with generally accepted actuarial practices and principles as an effective annual rate of interest over the term that the applicable Loan remains outstanding on the assumption that any charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be pro-rated over that period of time and otherwise be pro-rated over the period from the Effective Date to the relevant maturity date, as applicable, and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent shall be conclusive for the purposes of such determination. (b) For purposes of the Interest Act (Canada), (i) whenever any interest or fee payable by any Canadian Loan Party (including any Guaranteed Obligations) under this Agreement is calculated on the basis of a period of time other than a calendar year, such rate used in such calculation, when expressed as an annual rate, is equivalent to (x) such rate, multiplied by (y) the actual number of days in the calendar year in which the period for which such interest or fee is calculated ends, and divided by (z) the number of days in such period of time; (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation under this Agreement; and (iii) the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields. ARTICLE XII MISCELLANEOUS Section 12.01 Notices, Etc. (a) Notices Generally. All notices and other communications provided for hereunder shall be in writing and shall be delivered by hand, sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, or telecopier. In the case of notices or other communications to any Loan Party, the Administrative Agent or the Revolving
- 184 - 146576709v1146576709v15 Agent, as the case may be, they shall be sent to the respective address set forth below (or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties complying as to delivery with the terms of this Section 12.01): Mondee, Inc. 10800 Pecan Park Blvd, Suite 315400 Austin, TX 78750 Attention: Chief Financial OfficerJesus Portillo Telephone: [ * * * ] Email: [ * * * ] with a copy to (which shall not constitute notice): Hutchison PLLC 701 Corporate Center Drive, Suite 250 Raleigh, North Carolina 27607 Attention: John Rudd Telephone: 919-829-4289 Email: jrudd@hutchlaw.com Akin Gump Strauss Hauer & Feld LLP 2300 N. Field Street, Suite 1800 Dallas, Texas 75201 Attention: Alan Laves Telephone: [ * * * ] Email: [ * * * ] if to the Administrative Agent, to it at the following address: TCW Asset Management Company LLC 1251 Avenue of the Americas, Suite 4700 New York, New York 10020 Attention: Ryan Carroll Telephone: [ * * * ] Email: [ * * * ] with a copy to (which shall not constitute notice): Proskauer Rose LLP 11 Times Square New York, New York 10036 Attention: Michael M. Mezzacappa Telephone: [***] Telecopier: [ * * * ] Email: [***] and
- 185 - 146576709v1146576709v15 Alter Domus 225 W. Washington St. 9th Floor Chicago, Illinois 60606 Attention: Emily Morris Telephone: [***] Email: [***] if to Revolving Agent, to it at the following address: Wingspire Capital LLC 11720 Amber Park Drive, Suite 500 Alpharetta, Georgia 30009 Attention: John Olsen Telephone: [***] Email: [***] with a copy to (which shall not constitute notice): Blank Rome LLP 717 Texas Avenue, Suite 1400 Houston, Texas 77002 Attention: Cassandra Mott Telephone: [***] Email: [***] All notices or other communications sent in accordance with this Section 12.01, shall be deemed received on the earlier of the date of actual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (i) notices sent by overnight courier service shall be deemed to have been given when received and (ii) notices by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient), provided, further that notices to any Agent pursuant to Article II shall not be effective until received by such Agent. (b) Electronic Communications. (i) Each Agent and the Administrative Borrower 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. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e mail and Internet or intranet websites) pursuant to procedures approved by the Agents, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Agents that it is incapable of receiving notices under such Article by electronic communication.
- 186 - 146576709v1146576709v15 (ii) Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (A), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (A) and (B) above, if such notice, email 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. Section 12.02 Amendments, Etc. (a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (x) in the case of an amendment, consent or waiver to cure any ambiguity, omission, defect or inconsistency or granting a new Lien for the benefit of the Secured Parties or extending an existing Lien over additional property, by the Administrative Agent and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers), (y) in the case of any other amendment, waiver or consent, by the Required Lenders (with a copy to the Agents) (or by the Administrative Agent with the consent of the Required Lenders) and (z) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrowers (or by the Administrative Borrower on behalf of the Borrowers) (with a copy to the Agents), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall: (i) increase the Commitment of any Lender, reduce the principal of, or interest on, the Loans payable to any Lender, reduce the amount of any premium, indemnification, fee, expense or other amount payable for the account of any Lender (other than any imposition or rescission of default interest (which may be affected by consent of the Required Lenders)), or postpone or extend any scheduled date fixed for any payment of principal (which shall in no event include any mandatory prepayment) of, or interest or fees on, the Loans payable to any Lender, in each case, without the written consent of such Lender, in each case, other than as a result of the waiver of (A) default interest under Section 2.04(b), (B) a mandatory prepayment under Section 2.05(c) or (C) any Default or Event of Default; (ii) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans that is required for the Lenders or any of them to take any action hereunder without the written consent of each Lender; (iii) amend the definition of "Required Lenders", "Required Term Loan Lenders", "Required Revolving Loan Lenders" or "Pro Rata Share" without the written consent of each Lender; (iv) release all or a substantial portion of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents), subordinate any Lien
- 187 - 146576709v1146576709v15 granted in favor of the Administrative Agent for the benefit of the Secured Parties, or release any Borrower or any Guarantor (except in connection with a Disposition of the Equity Interests thereof permitted by Section 7.02(c)(ii)), in each case, without the written consent of each Lender; (v) amend, modify or waive Section 4.02, Section 4.03 or this Section 12.02 of this Agreement without the written consent of each Lender; or (vi) increase the Total Revolving Credit Commitment without the written consent of each Revolving Loan Lender. (b) Notwithstanding anything to the contrary in Section 12.02(a): (i) no amendment, waiver or consent shall, unless in writing and signed by an Agent, affect the rights or duties of such Agent (but not in its capacity as a Lender) under this Agreement or the other Loan Documents; (ii) any amendment, waiver or consent to any provision of this Agreement (including Sections 4.01 and 4.02) that permits any Loan Party, any Permitted Holder (or other direct or indirect equity holder of the Parent) or any of their respective Affiliates to purchase Loans on a non-pro rata basis, become an eligible assignee pursuant to Section 12.07 and/or make offers to make optional prepayments on a non-pro rata basis shall require the prior written consent of the Required Lenders rather than the prior written consent of each Lender directly affected thereby; (iii) no consent of any Loan Party shall be required to change any order of priority set forth in Section 2.05(d) and Section 4.03; and (iv) no Defaulting Lender, Loan Party, Permitted Holder (or other direct or indirect equity holder of the Parent), holder of Subordinated Indebtedness or any of their respective Affiliates that is a Lender shall have any right to approve or disapprove any amendment, waiver or consent under the Loan Documents and any Loans held by such Person for purposes hereof shall be automatically deemed to be voted pro rata according to the Loans of all other Lenders in the aggregate (other than such Defaulting Lender, Loan Party, Permitted Holder (or other direct or indirect equity holder of the Parent), holder of Subordinated Indebtedness or Affiliate). (c) If any action to be taken by the Lenders hereunder requires the consent, authorization, or agreement of all of the Lenders or any Lender affected thereby, and a Lender (other than the Administrative Agent and its Affiliates and Related Funds) (the “Holdout Lender”) fails to give its consent, authorization, or agreement, then the Administrative Agent, upon at least 5 Business Days prior irrevocable notice to the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute lenders (each, a “Replacement Lender”), and the Holdout Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender shall specify an effective date for such replacement, which date shall not be later than the earlier to occur of 15 Business Days after the date such notice is given and 180 days after the date of the applicable proposed consent, authorization, or agreement. Prior to the effective date of such replacement, the Holdout Lender and each Replacement Lender shall
- 188 - 146576709v1146576709v15 execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Holdout Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lender shall be made in accordance with the terms of Section 12.07. Until such time as the Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and obligations of the Holdout Lender hereunder and under the other Loan Documents, the Holdout Lender shall remain obligated to make its Pro Rata Share of Loans. In connection with the replacement of any Holdout Lender, all Obligations of such Holdout Lender shall be paid in full and all Commitments of such Holdout Lender shall be terminated. Section 12.03 No Waiver; Remedies, Etc. No failure on the part of any Agent or any Lender to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Agents and the Lenders under any Loan Document against any party thereto are not conditional or contingent on any attempt by the Agents and the Lenders to exercise any of their rights under any other Loan Document against such party or against any other Person. Section 12.04 Expenses; Taxes; Attorneys' Fees. The Borrowers will pay on demand, all costs and expenses incurred by or on behalf of each Agent (and, in the case of clauses (b) through (m) below, each Lender), regardless of whether the transactions contemplated hereby are consummated, including, without limitation, reasonable fees, costs, client charges and expenses of counsel for each Agent (and, in the case of clauses (b) through (m) below, each Lender), accounting, due diligence, periodic field audits, physical counts, valuations, investigations, searches and filings, monitoring of assets, appraisals of Collateral, the rating of the Loans, title searches and reviewing environmental assessments, miscellaneous disbursements, examination, travel, lodging and meals, arising from or relating to: (a) the negotiation, preparation, execution, delivery, performance and administration of this Agreement and the other Loan Documents (including, without limitation, the preparation of any additional Loan Documents pursuant to Section 7.01(b) or the review of any of the agreements, instruments and documents referred to in Section 7.01(f)), (b) any requested amendments, waivers or consents to this Agreement or the other Loan Documents whether or not such documents become effective or are given, (c) the preservation and protection of any of the Agents’ or any of the Lenders' rights under this Agreement or the other Loan Documents, (d) the defense of any claim or action asserted or brought against any Agent or any Lender by any Person that arises from or relates to this Agreement, any other Loan Document, the Agents’ or the Lenders' claims against any Loan Party, or any and all matters in connection therewith, (e) the commencement or defense of, or intervention in, any court proceeding arising from or related to this Agreement or any other Loan Document, (f) the filing of any petition, complaint, answer, motion or other pleading by any Agent or any Lender, or the taking of any action in respect of the Collateral or other security, in connection with this Agreement or any other Loan Document, (g) the protection, collection,
- 189 - 146576709v1146576709v15 lease, sale, taking possession of or liquidation of, any Collateral or other security in connection with this Agreement or any other Loan Document, (h) any attempt to enforce any Lien or security interest in any Collateral or other security in connection with this Agreement or any other Loan Document, (i) any attempt to collect from any Loan Party, (j) any Environmental Claim, Environmental Liability or Remedial Action arising from or in connection with the past, present or future operations of, or any property currently, formerly or in the future owned, leased or operated by, any Loan Party, any of its Subsidiaries or any predecessor in interest, (k) any Environmental Lien, (l) the rating of the Loans by one or more rating agencies in connection with any Lender's Securitization, or (m) the receipt by any Agent or any Lender of any advice from professionals with respect to any of the foregoing. Without limitation of the foregoing or any other provision of any Loan Document: (x) the Borrowers agree to pay all broker fees that may become due in connection with the transactions contemplated by this Agreement and the other Loan Documents and (y) if the Borrowers fail to perform any covenant or agreement contained herein or in any other Loan Document, any Agent may itself perform or cause performance of such covenant or agreement, and the expenses of such Agent incurred in connection therewith shall be reimbursed on demand by the Borrowers. The obligations of the Borrowers under this Section 12.04 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents. This Section 12.04 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. Section 12.05 Right of Set-off. Upon the occurrence and during the continuance of any Event of Default, any Agent or any Lender may, and is hereby authorized to, at any time and from time to time, without notice to any Loan Party (any such notice being expressly waived by the Loan Parties) and to the fullest extent permitted by law, set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Agent or such Lender or any of their respective Affiliates to or for the credit or the account of any Loan Party against any and all obligations of the Loan Parties either now or hereafter existing under any Loan Document, irrespective of whether or not such Agent or such Lender shall have made any demand hereunder or thereunder and although such obligations may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of set-off, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 4.04 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agents and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of set-off. Each Agent and each Lender agrees to notify such Loan Party promptly after any such set-off and application made by such Agent or such Lender or any of their respective Affiliates provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Agents and the Lenders under this Section 12.05 are in addition to the other rights and remedies (including other rights of set-off) which the Agents and the Lenders may have under this Agreement or any other Loan Documents of law or otherwise. Section 12.06 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
- 190 - 146576709v1146576709v15 such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Section 12.07 Assignments and Participations. (a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void. (b) Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to: (i) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Administrative Agent and the Administrative Borrower, and (ii) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each Agent and the Administrative Borrower; provided, that (A) the consent of any Agent shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default has occurred and is continuing, the Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written request therefor and (3) shall not be required during the continuance of an Event of Default; provided, further, that no written consent of the Agents or the Administrative Borrower shall be required (x) in connection with any assignment by a Lender to any Agent or any Lender, any Affiliate of any Agent or any Lender or any Related Fund of any Agent or any Lender or (y) if such assignment is in connection with any merger, amalgamation, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of any Lender. (c) Assignments shall be subject to the following additional conditions: (i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of $100,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) an Agent or a Lender, an Affiliate of an Agent or a Lender or a Related Fund of an Agent or a Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each
- 191 - 146576709v1146576709v15 other to the extent the aggregate amount to be assigned to all such new Lenders is at least $1,000,000 or a multiple of $100,000 in excess thereof); (ii) The parties to each such assignment shall execute and deliver to the Administrative Agent (and the Revolving Agent, if applicable), for its acceptance, an Assignment and Acceptance, and such parties shall deliver to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to an Agent or a Lender, an Affiliate of an Agent or a Lender or a Related Fund of an Agent or a Lender), any forms and certificates required pursuant to Section 2.09(e) and all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws; and (iii) No such assignment shall be made to any Defaulting Lender, any Loan Party, any Permitted Holder (or other direct or indirect equity holder of the Parent), any holder of Subordinated Indebtedness or any of their respective Affiliates, in each case, without the prior written consent of the Administrative Agent. (d) Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance and recordation on the Register, (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). No assignment shall be effective for purposes of this Agreement unless it has been recorded on the Register as provided in this Section. (e) By executing and delivering an Assignment and Acceptance, the assigning Lender and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement and the other Loan Documents, together with such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the assigning Lender, any Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in
- 192 - 146576709v1146576709v15 taking or not taking action under this Agreement and the other Loan Documents; (v) such assignee appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender. (f) The Administrative Agent shall, acting solely for this purpose as a non- fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice. (g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, the processing and recordation fee of $5,000, any forms and certificates required pursuant to Section 2.09(e) and all other know-your-customer documentation and information requested by the applicable Agent, and subject to any consent required from any Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Agent's execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent) and provide to the Revolving Agent, if applicable, a copy of the fully executed Assignment and Acceptance. (h) If any assignment by any Lender holding any promissory note is made after the issuance of such promissory note, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such promissory note to the Administrative Agent for cancellation, and, if requested by either the assignee or the assigning Lender, the Administrative Borrower shall issue and deliver a new promissory note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender. (i) In the event that any Lender sells participations in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of such Lender’s rights and obligations under the Loans owning to it, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name and address of each participant and their respective successors and assigns, and the principal amounts (and stated interest thereon) of each Participant’s interest in the Loans or other obligations under the Loan Documents that is the subject of the participation
- 193 - 146576709v1146576709v15 (the ”Participant Register”). The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Participant Register as a Lender hereunder for all purposes of this Agreement. The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt, neither the Administrative Agent (in its capacity as Administrative Agent) nor the Revolving Agent (in its capacity as Revolving Agent) shall have any responsibility for maintaining a Participant Register. (j) Any Foreign Lender who purchases or is assigned or participates in any portion of the rights and obligations under this Agreement shall comply with Section 2.09(e). (k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents 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 and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans , (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.07(b) (it being understood that the documentation required under Section 2.09(e) shall be delivered to the participating Lender, and if additional amounts are required to be paid pursuant to Section 2.09, to the Administrative Borrower). (l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to a securitization or similar credit facility (a “Securitization”); 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. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization. Section 12.08 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same
- 194 - 146576709v1146576709v15 agreement. Delivery of an executed counterpart of this Agreement by telecopier or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telecopier or electronic mail also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis. The words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Loan Documents, including any Assignment and Acceptance, shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Section 12.09 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK. Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY ANY MEANS PERMITTED BY APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADMINISTRATIVE BORROWER AT ITS ADDRESS FOR NOTICES AS SET FORTH IN SECTION 12.01, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. THE LOAN PARTIES AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION. EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
- 195 - 146576709v1146576709v15 REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. Section 12.11 WAIVER OF JURY TRIAL, ETC. EACH LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT. Section 12.12 Consent by the Agents and Lenders. Except as otherwise expressly set forth herein to the contrary or in any other Loan Document, if the consent, approval, satisfaction, determination, judgment, acceptance or similar action (an “Action”) of any Agent or any Lender shall be permitted or required pursuant to any provision hereof or any provision of any other agreement to which any Loan Party is a party and to which any Agent or any Lender has succeeded thereto, such Action shall be required to be in writing and may be withheld or denied by such Agent or such Lender, in its sole discretion, with or without any reason, and without being subject to question or challenge on the grounds that such Action was not taken in good faith. Section 12.13 No Party Deemed Drafter. Each of the parties hereto agrees that no party hereto shall be deemed to be the drafter of this Agreement. Section 12.14 Reinstatement; Certain Payments. If any claim is ever made upon any Secured Party for repayment or recovery of any amount or amounts received by such Secured Party in payment or on account of any of the Obligations, such Secured Party shall give prompt notice of such claim to each other Agent and Lender and the Administrative Borrower, and if such Secured Party repays all or part of such amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such Secured Party or any of its property, or (ii) any good faith settlement or compromise of any such claim effected by
- 196 - 146576709v1146576709v15 such Secured Party with any such claimant, then and in such event each Loan Party agrees that (A) any such judgment, decree, order, settlement or compromise shall be binding upon it notwithstanding the cancellation of any Indebtedness hereunder or under the other Loan Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and remain liable to such Secured Party hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by such Secured Party. Section 12.15 Indemnification; Limitation of Liability for Certain Damages. (a) In addition to each Loan Party's other Obligations under this Agreement, each Loan Party agrees to, jointly and severally, defend, protect, indemnify and hold harmless each Secured Party and all of their respective Related Parties (collectively called the “Indemnitees”) from and against any and all losses, damages, liabilities, obligations, penalties, fees, reasonable costs and expenses (including, without limitation, reasonable attorneys' fees, costs and expenses) incurred by such Indemnitees, whether prior to or from and after the Effective Date, whether direct, indirect or consequential, as a result of or arising from or relating to or in connection with any of the following: (i) the negotiation, preparation, execution or performance or enforcement of this Agreement, any other Loan Document or of any other document executed in connection with the transactions contemplated by this Agreement, (ii) any Agent's or any Lender's furnishing of funds to the Borrowers under this Agreement or the other Loan Documents, including, without limitation, the management of any such Loans or the Borrowers' use of the proceeds thereof, (iii) the Agents and the Lenders relying on any instructions of the Administrative Borrower or the handling of the Loan Accounts and Collateral of the Borrowers as herein provided, (iv) any matter relating to the financing transactions contemplated by this Agreement or the other Loan Documents or by any document executed in connection with the transactions contemplated by this Agreement or the other Loan Documents, or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (collectively, the “Indemnified Matters”); provided, however, that the Loan Parties shall not have any obligation to any Indemnitee under this subsection (a) for any Indemnified Matter caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction. (b) The indemnification for all of the foregoing losses, damages, fees, costs and expenses of the Indemnitees set forth in this Section 12.15 are chargeable against the Loan Account. To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 12.15 may be unenforceable because it is violative of any law or public policy, each Loan Party shall, jointly and severally, contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees. (c) No Loan Party shall assert, and each Loan Party hereby waives, any claim against the Indemnitees, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the
- 197 - 146576709v1146576709v15 transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Loan Party hereby waives, releases and agrees not to sue upon any such claim or seek any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (d) This Section 12.15 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. (e) The indemnities and waivers set forth in this Section 12.15 shall survive the repayment of the Obligations and discharge of any Liens granted under the Loan Documents. Section 12.16 Records. The unpaid principal of and interest on the Loans, the interest rate or rates applicable to such unpaid principal and interest, the duration of such applicability, the Commitments, and the accrued and unpaid fees payable pursuant to Section 2.06 hereof, shall at all times be ascertained from the records of the Agents, which shall be conclusive and binding absent manifest error. Section 12.17 Binding Effect. This Agreement shall become effective when it shall have been executed by each Loan Party, each Agent and each Lender and when the conditions precedent set forth in Section 5.01 hereof have been satisfied or waived in writing by the Agents, and thereafter shall be binding upon and inure to the benefit of each Loan Party, each Agent and each Lender, and their respective successors and assigns, except that the Loan Parties shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of each Agent and each Lender, and any assignment by any Lender shall be governed by Section 12.07 hereof. Section 12.18 Highest Lawful Rate. It is the intention of the parties hereto that each Agent and each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby or by any other Loan Document would be usurious as to any Agent or any Lender under laws applicable to it (including the laws of the United States of America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or any other Loan Document or any agreement entered into in connection with or as security for the Obligations, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under law applicable to any Agent or any Lender that is contracted for, taken, reserved, charged or received by such Agent or such Lender under this Agreement or any other Loan Document or agreements or otherwise in connection with the Obligations shall under no circumstances exceed the maximum amount allowed by such applicable law, any excess shall be canceled automatically and if theretofore paid shall be credited by such Agent or such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Agent or such Lender, as applicable, to the Borrowers); and (ii) in the event that the maturity of the Obligations is accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Agent or any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this
- 198 - 146576709v1146576709v15 Agreement or otherwise shall, subject to the last sentence of this Section 12.18, be canceled automatically by such Agent or such Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Agent or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Agent or such Lender to the Borrowers). All sums paid or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Agent or such Lender, be amortized, prorated, allocated and spread throughout the full term of the Loans until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law. If at any time and from time to time (x) the amount of interest payable to any Agent or any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Agent or such Lender pursuant to this Section 12.18 and (y) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Agent or such Lender would be less than the amount of interest payable to such Agent or such Lender computed at the Highest Lawful Rate applicable to such Agent or such Lender, then the amount of interest payable to such Agent or such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Agent or such Lender until the total amount of interest payable to such Agent or such Lender shall equal the total amount of interest which would have been payable to such Agent or such Lender if the total amount of interest had been computed without giving effect to this Section 12.18. For purposes of this Section 12.18, the term “applicable law” shall mean that law in effect from time to time and applicable to the loan transaction between the Borrowers, on the one hand, and the Agents and the Lenders, on the other, that lawfully permits the charging and collection of the highest permissible, lawful non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling, laws of the United States of America. The right to accelerate the maturity of the Obligations does not include the right to accelerate any interest that has not accrued as of the date of acceleration. Section 12.19 Confidentiality. Each Agent and each Lender agrees (on behalf of itself and each of its Related Parties) to use reasonable precautions to keep confidential, in accordance with its customary procedures for handling confidential information of this nature and in accordance with safe and sound practices of comparable commercial finance companies, any non-public information supplied to it by, or on behalf of, the Loan Parties pursuant to this Agreement or the other Loan Documents which is identified in writing by the Loan Parties as being confidential at the time the same is delivered to such Person or its Related Parties (and which at the time is not, and does not thereafter become, publicly available or available to such Person or its Related Parties from another source not known to be subject to a confidentiality obligation to such Person or such Related Party not to disclose such information), provided that nothing herein shall limit the disclosure by any Agent or any Lender of any such information (i) to its Related Parties and its Related Parties’ respective equityholders (including, without limitation, partners), directors, officers, employees, agents, trustees, counsel, advisors and representatives (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
146576709v1146576709v15 confidential in accordance with this Section 12.19); (ii) to any other party hereto; (iii) to any assignee or participant (or prospective assignee or participant) or any party to a Securitization so long as such assignee or participant (or prospective assignee or participant) or party to a Securitization first agrees, in writing, to be bound by confidentiality provisions similar in substance to this Section 12.19; (iv) to the extent required by any Requirement of Law or judicial process or as otherwise requested by any Governmental Authority; (v) to the National Association of Insurance Commissioners or any similar organization, any examiner, auditor or accountant or any nationally recognized rating agency or otherwise to the extent consisting of general portfolio information that does not identify Loan Parties; (vi) in connection with any litigation to which any Agent or any Lender is a party; (vii) 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; or (viii) with the consent of the Administrative Borrower. Section 12.20 Public Disclosure. Each Loan Party agrees that neither it nor any of its Affiliates will now or in the future issue any press release or other public disclosure using the name of any Agent, any Lender or any of their respective Affiliates or referring to this Agreement or any other Loan Document without the prior written consent of such Agent or such Lender, except to the extent that such Loan Party or such Affiliate is required to do so under applicable law (in which event, such Loan Party or such Affiliate will consult with such Agent or such Lender before issuing such press release or other public disclosure). Each Loan Party hereby authorizes each Agent and each Lender, after consultation with the Borrowers, to advertise the closing of the transactions contemplated by this Agreement, and to make appropriate announcements of the financial arrangements entered into among the parties hereto, as such Agent or such Lender shall deem appropriate, including, without limitation, on a home page or similar place for dissemination of information on the Internet or worldwide web, or in announcements commonly known as tombstones, in such trade publications, business journals, newspapers of general circulation and to such selected parties as such Agent or such Lender shall deem appropriate. Section 12.21 Integration. This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. Section 12.22 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the entities composing the Borrowers, which information includes the name and address of each such entity and other information that will allow such Lender to identify the entities composing the Borrowers in accordance with the USA PATRIOT Act. Each Loan Party agrees to take such action and execute, acknowledge and deliver at its sole cost and expense, such instruments and documents as any Lender may reasonably require from time to time in order to enable such Lender to comply with the USA PATRIOT Act. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] - 197 -
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. BORROWERS: MONDEE, INC. By: Name: Title: C&H TRAVEL AND TOURS INC. By: Name: Title: MONDEE CANADA INC. By: Name: Title: SKYLINK TRAVEL, INC. By: Name: Title: SKYLINK TRAVEL, INC. By: Name: Title: SKYLINK TRAVEL, INC. By: Name: Title: SKYLINK TRAVEL, SFO INC. By: Name: Title:
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 TRANS AM TRAVEL, INC. By: Name: Title: HARI-WORLD TRAVEL GROUP, INC. By: Name: Title: EXPLORETRIP IP HOLDINGS, INC. By: Name: Title: EXPLORETRIP, INC. By: Name: Title: MONDEE ACQUISITION COMPANY INC. By: Name: Title: TRANSWORLD TRAVEL, INC. By: Name: Title:
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 LBF TRAVEL HOLDINGS, LLC By: Name: Title: LBF TRAVEL, INC. (f/k/a LBF Acquisition Corporation, Inc.) By: Name: Title: AVIA TRAVEL AND TOURS, INC. By: Name: Title: COSMOPOLITAN TRAVEL SERVICE, INC. By: Name: Title: COSMOPOLITAN TRAVEL SERVICES INC. By: Name: Title: ROCKETRIP, INC. By: Name: Title:
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 SKYPASS TRAVEL INC. By: Name: Title: SKYPASS HOLIDAYS LLC By: Name: Title:
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 GUARANTORS: MONDEE HOLDINGS, INC. By: Name: Title: MONDEE HOLDINGS II, LLC By: Name: Title:
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 ADMINISTRATIVE AGENT: TCW ASSET MANAGEMENT COMPANY LLC By: Name: Title:
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 LENDERS: TCW WV DLG 2017-1 LLC By: West Virginia Direct Lending LLC By: TCW Asset Management Company LLC, its Investment Advisor By: Name: Suzanne Grosso Title: Managing Director TCW SKYLINE LENDING LP By: TCW Asset Management Company LLC, its Investment Advisor By: Name: Suzanne Grosso Title: Managing Director NJ/TCW DLG 2017-A LLC By: NJ/TCW Direct Lending LLC By: TCW Asset Management Company LLC, its Investment Advisor By: Name: Suzanne Grosso Title: Managing Director TCW BRAZOS FUND LLC By: TCW Asset Management Company LLC, its Investment Advisor By: Name: Suzanne Grosso Title: Managing Director
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 TCW DIRECT LENDING VII LLC By: TCW Asset Management Company LLC, its Investment Advisor By: Name: Suzanne Grosso Title: Managing Director TCW DIRECT LENDING STRUCTURED SOLUTIONS 2019 LLC By: TCW Asset Management Company LLC, its Investment Manager By: Name: Suzanne Grosso Title: Managing Director US SPECIALTY INSURANCE COMPANY By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: Name: Suzanne Grosso Title: Managing Director SAFETY NATIONAL CASUALTY CORP By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: Name: Suzanne Grosso Title: Managing Director
[SIGNATURE PAGE TO FINANCING AGREEMENT] 146576709v1146576709v15 RELIANCE STANDARD LIFE INSURANCE COMPANY By: TCW Asset Management Company LLC Its: Investment Manager and Attorney-in-Fact By: Name: Suzanne Grosso Title: Managing Director
146576709v1146576709v15 Schedule 1.01(A)(i) EXISTING TERM LOANS LENDER OUTSTANDING PRINCIPAL AMOUNT OF TERM LOANS ON THE AMENDMENT NO. 9 EFFECTIVE DATE Reliance Standard Life Insurance Company $5,303,279.11 Safety National Casualty Corp $4,640,369.22 TCW Brazos Fund LLC $3,781,105.84 TCW Direct Lending Structured Solutions 2019 LLC $14,696,022.22 TCW DL VII Financing LLC $75,063,332.85 TCW Skyline Lending LP $10,712,623.8 US Specialty Insurance Company $3,314,549.42 West Virginia Direct Lending LLC $2,644,911.5 NJ/TCW Direct Lending LLC $2,309,640.99 NH Credit Partners III Holdings L.P. $30.286,861.49 TOTALS: $152,752,696.44
146576709v1146576709v15 Schedule 1.01(A)(ii) REDESIGNATED TERM LOANS LENDER OUTSTANDING PRINCIPAL AMOUNT OF REDESIGNATED TERM LOAN A ON THE AMENDMENT NO. 9 EFFECTIVE DATE OUTSTANDING PRINCIPAL AMOUNT OF REDESIGNATED TERM LOAN B ON AMENDMENT NO. 9 EFFECTIVE DATE TOTAL Reliance Standard Life Insurance Company $0 $4,782,508.03 $4,782,508.03 Safety National Casualty Corp $0 $4,184,694.53 $4,184,694.53 TCW Brazos Fund LLC $0 $3,409,809.04 $3,409,809.04 TCW Direct Lending Structured Solutions 2019 LLC $0 $13,252,903.12 $13,252,903.12 TCW DL VII Financing LLC $0 $67,692,268.25 $67,692,268.25 TCW Skyline Lending LP $0 $9,660,666.22 $9,660,666.22 US Specialty Insurance Company $0 $2,989,067.50 $2,989,067.50 West Virginia Direct Lending LLC $0 $2,385,186.64 $2,385,186.64 NJ/TCW Direct Lending LLC $0 $2,082,839.00 $2,082,839.00 NH Credit Partners III Holdings L.P. $0 $27,312,754.11 $27,312,754.11 Wingspire Capital LLC $15,000,000 $0 $15,000,000 TOTALS: $15,000,000 $137,752,696.40 $152,752,696.44
146576709v1146576709v15 Schedule 1.01(A)(iii) AMENDMENT NO. 9 TERM LOAN LENDERS AND COMMITMENTS LENDER AMENDMENT NO. 9 TERM LOAN COMMITMENTS Wingspire Capital LLC $15,000,000 TOTALS: $15,000,000
146576709v1146576709v15 Schedule 1.01(A)(iv) REVOLVING LENDERS AND COMMITMENTS LENDER REVOLVING CREDIT COMMITMENT Wingspire Capital LLC $15,000,000 TOTALS: $15,000,000
146576709v15 Schedule 1.01(A)(v) AMENDMENT NO. 21 TERM LOAN LENDERS AND COMMITMENTS LENDER AMENDMENT NO. 21 TERM LOAN COMMITMENTS AMENDMENT NO. 21 TERM LOAN COMMITMENT #1 AMENDMENT NO. 21 TERM LOAN COMMITMENT #2 TCW DL VII Financing LLC $6,129,328.46 $1,021,554.75 $5,107,773.71 TCW Direct Lending Structured Solutions 2019 LLC $1,200,009.97 $200,001.66 $1,000,008.31 TCW Skyline Lending LP $874,743.87 $145,790.64 $728,953.23 TCW Brazos Fund LLC $308,747.81 $51,457.97 $257,289.84 West Virginia Direct Lending LLC $215,971.37 $35,995.23 $179,976.14 NJ/TCW Direct Lending LLC $188,594.72 $31,432.45 $157,162.27 Reliance Standard Life Insurance Company $433,041.52 $72,173.59 $360,867.93 Safety National Casualty Corp $378,911.33 $63,151.89 $315,759.44 US Specialty Insurance Company $270,650.95 $45,108.49 $225,542.46 NH Credit Partners III Holdings L.P. $5,000,000.00 $833,333.33 $4,166,666.67 TOTALS: $15,000,000 $2,500,000 $12,500,000
146576709v15 Schedule 1.01(A)(vi) TERM LOANS OUTSTANDING AFTER AMENDMENT NO. 21 EFFECTIVE DATE LENDER TERM LOAN A TERM LOAN B Wingspire Capital LLC $25,456,058.04 $0 TCW DL VII Financing LLC $0 $77,372,945.10 TCW Direct Lending Structured Solutions 2019 LLC $0 $15,148,201.86 TCW Skyline Lending LP $0 $11,042,238.90 TCW Brazos Fund LLC $0 $3,897,446.10 West Virginia Direct Lending LLC $0 $2,726,292.36 NJ/TCW Direct Lending LLC $0 $2,380,705.97 Reliance Standard Life Insurance Company $0 $5,466,454.90 Safety National Casualty Corp $0 $4,783,148.05 US Specialty Insurance Company $0 $3,416,534.31 NH Credit Partners III Holdings L.P. $0 $31,639,905.53 TOTALS: $25,456,058.04 $157,873,873.08
146576709v1146576709v15 EXHIBIT 2.09(e)-1 U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Financing Agreement dated as of December 23, 2019 (as amended, supplemented or otherwise modified from time to time, the “Financing Agreement”), by and among Mondee Holdings, Inc., a Delaware corporation (the “Parent”), each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with each other Person that executes a joinder agreement and becomes a “Borrower” thereunder, each a “Borrower” and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor” on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a “Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”), the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”) and TCW Asset Management Company LLC, a Delaware limited liability company (“TCW”), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the “Revolving Agent” and together with the Administrative Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein, terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement. Pursuant to the provisions of Section 2.09(e) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan or Loans (as well as any Note evidencing any such Loan) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished the Administrative Agent and the Administrative Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W- 8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Administrative Agent and the Administrative Borrower, and (2) the undersigned shall have at all times furnished the Administrative Agent and the Administrative Borrower with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. [NAME OF LENDER]
146576709v1146576709v15 By: Name: Title: Date: , 20[ ] [SIGNATURE PAGE TO TAX COMPLIANCE CERTIFICATE]
146576709v1146576709v15 EXHIBIT 2.09(e)-2 U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Financing Agreement dated as of December 23, 2019 (as amended, supplemented or otherwise modified from time to time, the “Financing Agreement”), by and among Mondee Holdings, Inc., a Delaware corporation (the “Parent”), each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with each other Person that executes a joinder agreement and becomes a “Borrower” thereunder, each a “Borrower” and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor” on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a “Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”), the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”) and TCW Asset Management Company LLC, a Delaware limited liability company (“TCW”), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the “Revolving Agent” and together with the Administrative Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein, terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement. Pursuant to the provisions of Section 2.09(e) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished its participating Lender with a certificate of its non- U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. [NAME OF PARTICIPANT] 1
146576709v1146576709v15 By: Name: Title: Date: , 20[ ] [SIGNATURE PAGE TO TAX COMPLIANCE CERTIFICATE]
146576709v1146576709v15 EXHIBIT 2.09(e)-3 U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Financing Agreement dated as of December 23, 2019 (as amended, supplemented or otherwise modified from time to time, the “Financing Agreement”), by and among Mondee Holdings, Inc., a Delaware corporation (the “Parent”), each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with each other Person that executes a joinder agreement and becomes a “Borrower” thereunder, each a “Borrower” and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor” on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a “Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”), the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”) and TCW Asset Management Company LLC, a Delaware limited liability company (“TCW”), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the “Revolving Agent” and together with the Administrative Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein, terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement. Pursuant to the provisions of Section 2.09(e) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners or members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners or members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners or members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners or members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. [NAME OF PARTICIPANT] 1
146576709v1146576709v15 By: Name: Title: Date: , 20[ ] [SIGNATURE PAGE TO TAX COMPLIANCE CERTIFICATE]
1 146576709v1146576709v15 EXHIBIT 2.09(e)-4 U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Financing Agreement dated as of December 23, 2019 (as amended, supplemented or otherwise modified from time to time, the “Financing Agreement”), by and among Mondee Holdings, Inc., a Delaware corporation (the “Parent”), each subsidiary of the Parent listed as a “Borrower” on the signature pages thereto (together with each other Person that executes a joinder agreement and becomes a “Borrower” thereunder, each a “Borrower” and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor” on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a “Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”), the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”) and TCW Asset Management Company LLC, a Delaware limited liability company (“TCW”), as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Wingspire Capital LLC, a Delaware limited liability company (“Wingspire”), as revolving agent for the Revolving Loan Lenders (in such capacity, together with its successors and assigns in such capacity, the “Revolving Agent” and together with the Administrative Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein, terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement. Pursuant to the provisions of Section 2.09(e) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan or Loans (as well as any Note evidencing any such Loan) in respect of which it is providing this certificate, (ii) its direct or indirect partners or members are the sole beneficial owners of such Loan or Loans (as well as any Note evidencing such Loan), (iii) with respect to the extension of credit pursuant to this Financing Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners or members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners or members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners or members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished the Administrative Agent and the Administrative Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Administrative Agent and the Administrative Borrower, and (2) the undersigned shall have at all times furnished the Administrative Agent and the Administrative Borrower with a properly
146576709v1146576709v15 completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. 2
146576709v1146576709v15 [NAME OF LENDER] By: Name: Title: Date: , 20[ ] [SIGNATURE PAGE TO TAX COMPLIANCE CERTIFICATE]
Summary report: Litera Compare for Word 11.6.0.100 Document comparison done on 8/14/2024 3:24:31 AM Style name: Default Style Intelligent Table Comparison: Active Original DMS: iw://filesitex.proskauer.com/CURRENT/146576709/1 Modified DMS: iw://filesitex.proskauer.com/CURRENT/146576709/15 Changes: Add 264 Delete 183 Move From 17 Move To 17 Table Insert 40 Table Delete 0 Table moves to 0 Table moves from 0 Embedded Graphics (Visio, ChemDraw, Images etc.) 0 Embedded Excel 0 Format changes 0 Total Changes: 521
Mondee Reports Second Quarter 2024 Results and Announces Comprehensive Long-Term Refinancing of its Capital Structure
- Net Revenues of $58.3M, up 3% from prior-year quarter, on Gross Bookings of $678M
- Adjusted EBITDA3 of $6.1M, up 38% from the prior-year quarter
- Take Rate of 8.6%, up 20 basis points from the prior-year quarter
- Refinancing of term loan and extension of preferred equity
AUSTIN, Texas - Mondee Holdings, Inc. (Nasdaq: MOND) (“Mondee” or the “Company”), a leading travel marketplace and artificial intelligence (AI) technology company, today announced financial results for the three-month period ended June 30, 2024.
“Mondee delivered a strong second quarter, with net revenue, take rate, and adjusted EBITDA up year over year—the latter by 38%. Our non-air component surged to 47% of net revenue and take rate grew 20 basis points to 8.6%,” said Founder, Chairman, and CEO Prasad Gundumogula.
“We are also successfully refinancing our term loan and preferred equity, securing favorable terms that position Mondee for long-term growth. This new capital structure is expected to fuel our expansion, improve profitability, and solidify our AI leadership in travel,” Gundumogula continued.
“We delivered net revenue of $58 million—up 3% year over year, or 11.5% adjusted for acquisitions and disposals—and maintained healthy adjusted EBITDA. Our much-anticipated refinancing is expected to provide Mondee with financial flexibility, and additional working capital, enabling the Company to resume and accelerate its growth trajectory,” said CFO Jesus Portillo.
Second Quarter Financial Highlights
•Gross bookings of $678.0 million for the quarter, approximately in line with the second quarter of 2023 (“Q2 23”). Our strategy of rapid growth in non-air and platform-driven international air expansion led to a strong 57% transaction growth with reduced average transaction price. This resulted in lower revenue growth and higher adjusted EBITDA.
•Net revenues of $58.3 million for the quarter, an increase of 3% compared to $56.8 million in Q2 23. Delays in completing the refinancing caused a reduction in FinTech credit limits and working capital, materially limiting net revenue growth.
•Net Loss of $25.5 million for the quarter, including $19.1 million of non-cash and/or non-recurring items, such as $3.7 million of depreciation and amortization, $1.0 million of PIKed interest, $12.0 million of stock-based compensation, and $2.3 million amortization of loan origination fees, among others.
•Adjusted EBITDA of $6.1 million for the quarter, an increase of 38% compared to $4.4 million in Q2 23.
•Operating cash flow used of $7.6 million for the quarter, compared to cash used of $2.4 million in Q2 23. In this quarter, the Company used over $10 million of cash reserves as working capital to offset for credit limit reductions by certain FinTech partners in the face of delays in refinancing of its term loan. The Company anticipates some of these credit limits to be reinstated as the refinancing is being completed. Year-to-date, both operating cash flow and free cash flow were positive, $11.1 million and $3.3 million, respectively.
Financial Summary and Operating Results 1,2
| | | | | | | | | | | | | | | | | | | | | | | |
| For the three months ended June 30, | | Year-Over-Year Change |
| 2024 | | 2023 | | | | % |
| Transactions | 1,133,997 | | 721,464 | | 412,533 | | 57% |
| Gross Bookings | $677,957 | | $679,244 | | $(1,287) | | —% |
| Net Revenues | $58,326 | | $56,771 | | $1,555 | | 3% |
| Net Loss | $(25,512) | | $(14,608) | | $(10,904) | | 75% |
Loss per share (EPS) | $(0.36) | | $(0.22) | | $(0.14) | | 63% |
Adjusted EBITDA3 | $6,111 | | $4,438 | | $1,673 | | 38% |
Adjusted Loss per Share3 | $(0.17) | | $(0.09) | | $(0.08) | | 92% |
| Net cash used in operating activities | $(7,599) | | $(2,427) | | $(5,172) | | (213)% |
| | | | | | | | | | | | | | | | | | | | | | | |
| For the six months ended June 30, | | Year-Over-Year Change |
| 2024 | | 2023 | | | | % |
| Transactions | 2,209,434 | | 1,386,637 | | 822,797 | | 59% |
| Gross Bookings | $1,386,033 | | $1,347,323 | | $38,710 | | 3% |
| Net Revenues | $116,347 | | $106,700 | | $9,647 | | 9% |
| Net Loss | $(44,970) | | $(27,523) | | $(17,447) | | 63% |
Loss per share (EPS) | $(0.66) | | $(0.43) | | $(0.23) | | 54% |
Adjusted EBITDA3 | $11,167 | | $8,595 | | $2,572 | | 30% |
Adjusted Loss per Share3 | $(0.32) | | $(0.18) | | $(0.14) | | 74% |
| Net cash from (used in) operating activities | $11,062 | | $(12,406) | | $23,468 | | (189)% |
1 In $ thousands, except for Transactions and Loss per Share.
2 2Q 2024 Net Loss included $19.1 million of non-cash and/or non-recurring items, such as $3.7 million of depreciation and amortization, $1.0 million of PIKed interest, $12.0 million of stock-based compensation and related payroll expense, and $2.3 million amortization of loan origination fees, and $0.1 million change in fair value of earn-out liabilities, among others.
3 Refer to section entitled “Use of Non-GAAP Measures” for a reconciliation of non-GAAP financial measures.
Second Quarter 2024 Business Highlights and Subsequent Events
•Long-Term Refinancing. The Company announced today a comprehensive refinancing of its capital structure with TCW and funds affiliated with Morgan Stanley Investment Management, that is expected to extend its term loan to June 30, 2028, and its preferred equity to December 31, 2028. The extended timing for the term loan beyond August 31, 2025 and the preferred equity beyond September 30, 2026, are both subject to securing a $15 million letter of credit that the Company anticipates finalizing shortly and which would provide additional working capital.
Revised 2024 Financial Outlook
Our fiscal year 2024 guidance, as a result of the impact of working capital and FinTech credit limit constraints caused by delays in completing the refinancing, is adjusted as follows:
•Net revenues of approximately $240 million to $250 million, representing an increase of 10% versus 2023 net revenues, measured at the midpoint.
•Adjusted EBITDA of approximately $25 million to $30 million, representing an increase of 42% versus 2023 Adjusted EBITDA, measured at the midpoint.
Conference Call Information
Mondee will host a conference call Wednesday, August 14th at 5:30 a.m. (PT) / 7:30 a.m. (CT) / 8:30 a.m. (ET) to discuss its financial results with the investment community. A live webcast of the event will be available on the Mondee Investor Relations website at http://investors.mondee.com. A live dial-in is available domestically at (833) 470-1428 and internationally at +1 (404) 975-4839, passcode 985518.
A replay will be available on Mondee’s Investor Relations website and an audio replay will be available domestically at (866) 813-9403 or internationally at +1 (929) 458-6194, passcode 968920, until midnight (ET) September 4, 2024.
About Mondee Holdings, Inc. and Subsidiaries
Established in 2011, Mondee is a leading travel marketplace and artificial intelligence (“AI”) technology company with its headquarters based in Austin, Texas. The company operates 22 offices across the United States and Canada and has core operations in Brazil, Mexico, India, Thailand, and Greece. Mondee is driving change in the leisure and corporate travel sectors through its broad array of innovative solutions. Available both as an app and through the web, the company’s platform processes over 50 million daily searches and generates a substantial transactional volume annually. Mondee Marketplace includes access to Abhi, the most powerful and only fully-integrated AI travel planning assistant in the market. Mondee’s network and marketplace include approximately 65,000 travel experts, 500+ airlines, and over one million hotels and vacation rentals, 30,000 rental car pickup locations, and 50+ cruise lines. The company also offers packaged solutions and ancillary offerings that serve our global distribution. On July 19, 2022, Mondee became publicly traded on the Nasdaq under the ticker symbol MOND. For further information, visit: www.mondee.com.
Forward-Looking Statements:
This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking statements can be identified by words such as: “believe,” “could,” “may,” “expect,” “intend,” “potential,” “plan,” “will” and similar references to future periods. Examples of forward-looking statements include, among others, statements we make regarding the Company’s future growth, performance, business prospects and opportunities, strategies, expectations, future plans and intentions or other future events. Such forward-looking statements are subject to risks, uncertainties, and other factors, which could cause actual results to differ materially from those expressed or implied by such forward-looking statements.
Management believes that these forward-looking statements are reasonable as and when made. However, the Company cautions you that these forward-looking statements are subject to risks and uncertainties, most of which are difficult to predict and many of which are beyond the control of the Company. Factors that may cause actual results to differ materially from current expectations include, but are not limited to, the ability to implement business plans and forecasts, the outcome of any legal proceedings that may be instituted against the Company or others and any definitive agreements with respect thereto, the ability of the Company to grow and manage growth profitably, retain management and key employees, and maintain relationships with our distribution network and suppliers, the ability of the Company to maintain compliance with Nasdaq’s listing standards, the expected changes to the Company’s capital structure, and other risks and uncertainties set forth in the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 and Quarterly Report of Form 10-Q for the three months ended March 31, 2024 filed with the U.S. Securities and Exchange Commission (the “SEC”), and in the Company’s subsequent filings with the SEC. There may be additional risks that the Company does not presently know of or that the Company currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.
Nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. In light of the significant uncertainties in these forward-looking statements, you should not rely upon forward-looking
statements as predictions of future events. Except as required by law, Mondee undertakes no obligation to update publicly any forward-looking statements for any reason.
MONDEE HOLDINGS, INC.
Condensed Consolidated Balance Sheets
(In thousands, except par value) (unaudited)
| | | | | | | | | | | |
| June 30,
2024 | | December 31,
2023 |
| Assets | | | |
| Current assets | | | |
| Cash and cash equivalents | $ | 23,337 | | | $ | 27,994 | |
| Restricted cash and short-term investments | 8,951 | | | 7,993 | |
| Accounts receivable, net of allowance | 94,347 | | | 116,632 | |
| Contract assets, net of allowance | 15,459 | | | 13,228 | |
| Amounts receivable from related parties, current portion | 59 | | | — | |
| Prepaid expenses and other current assets | 6,732 | | | 7,250 | |
| Total current assets | 148,885 | | | 173,097 | |
| Property and equipment, net | 23,831 | | | 17,311 | |
| Goodwill | 82,758 | | | 88,056 | |
| Intangible assets, net | 92,288 | | | 102,029 | |
| Amounts receivable from related parties, excluding current portion | — | | | 43 | |
| Operating lease right-of-use assets | 4,024 | | | 3,232 | |
| Deferred income taxes | 752 | | | 752 | |
| Other non-current assets | 10,266 | | | 7,871 | |
| TOTAL ASSETS | $ | 362,804 | | | $ | 392,391 | |
| | | |
| Liabilities, Redeemable Preferred Stock and Stockholders’ Deficit | | | |
| Current liabilities | | | |
| Accounts payable | $ | 121,838 | | | $ | 114,989 | |
| Amounts payable to related parties | 41 | | | 42 | |
| Government loans, current portion | 20 | | | 66 | |
| Accrued expenses and other current liabilities | 25,853 | | | 25,115 | |
| Earn-out liability, net, current portion | 4,013 | | | 4,843 | |
| Deferred revenue, current portion | 5,213 | | | 5,686 | |
| Long-term debt, current portion | 5,182 | | | 10,828 | |
| Total current liabilities | 162,160 | | | 161,569 | |
| Deferred income taxes | 8,473 | | | 12,334 | |
| Note payable to related party | 203 | | | 201 | |
| Government loans, excluding current portion | 127 | | | 142 | |
| Warrant liability | 102 | | | 137 | |
| Earn-out liability, net, excluding current portion | 2,116 | | | 4,322 | |
| Long-term debt, excluding current portion | 164,104 | | | 150,679 | |
| Deferred revenue, excluding current portion | 10,490 | | | 11,797 | |
| | | | | | | | | | | |
| June 30,
2024 | | December 31,
2023 |
| Operating lease liabilities, excluding current portion | 2,825 | | | 2,561 | |
| Other long-term liabilities | 8,088 | | | 8,073 | |
| Total liabilities | 358,688 | | | 351,815 | |
| | | |
| Redeemable preferred stock | | | |
| Series A preferred stock - $0.0001 par value | 115,734 | | | 105,804 | |
| | | |
| Stockholders’ deficit | | | |
| Common stock – $0.0001 par value | 9 | | | 8 | |
| Treasury Stock | (32,088) | | | (32,088) | |
| Additional paid-in capital | 312,770 | | | 306,326 | |
| Accumulated other comprehensive (losses) gains | (6,267) | | | 1,598 | |
| Accumulated deficit | (386,042) | | | (341,072) | |
| Total stockholders’ deficit | (111,618) | | | (65,228) | |
| TOTAL LIABILITIES, REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS’ DEFICIT | $ | 362,804 | | | $ | 392,391 | |
MONDEE HOLDINGS, INC.
Condensed Consolidated Statements of Operations
(In thousands, except weighted-average shares and net loss per share data) (unaudited)
| | | | | | | | | | | | | | | | | | | | | | | |
| Three Months Ended
June 30, | | Six Months Ended
June 30, |
| 2024 | | 2023 | | 2024 | | 2023 |
| Revenues, net | $ | 58,326 | | | $ | 56,771 | | | $ | 116,347 | | | $ | 106,700 | |
| Operating expenses | | | | | | | |
| Sales and marketing expenses | 38,107 | | | 40,060 | | | 78,374 | | | 77,505 | |
| Personnel expenses, including stock-based compensation of $10,922, $4,467, $16,168, and $6,623, respectively | 22,072 | | | 12,359 | | | 35,288 | | | 19,825 | |
| General and administrative expenses, including non-employee stock-based compensation of $590, $337, $645, and $742, respectively | 4,020 | | | 5,227 | | | 9,805 | | | 9,721 | |
| Information technology expenses | 268 | | | 1,376 | | | 2,337 | | | 2,299 | |
| Provision for credit losses, net | 349 | | | (34) | | | (54) | | | (701) | |
| Depreciation and amortization | 3,653 | | | 3,803 | | | 9,216 | | | 7,189 | |
| Restructuring expense, net | 158 | | | (168) | | | (131) | | | 1,361 | |
| Total operating expenses | 68,627 | | | 62,623 | | | 134,835 | | | 117,199 | |
| Loss from operations | (10,301) | | | (5,852) | | | (18,488) | | | (10,499) | |
| Other (expense) income | | | | | | | |
| Interest income | 200 | | | 290 | | | 369 | | | 637 | |
| Interest expense | (12,818) | | | (8,415) | | | (22,750) | | | (16,632) | |
| Changes in fair value of warrant liability | (7) | | | 393 | | | 35 | | | 372 | |
| Other (expense) income, net | (2,590) | | | 984 | | | (3,495) | | | 1,306 | |
| Total other expense, net | (15,215) | | | (6,748) | | | (25,841) | | | (14,317) | |
| Loss before income taxes | (25,516) | | | (12,600) | | | (44,329) | | | (24,816) | |
| Benefit (provision) for income taxes | 4 | | | (2,008) | | | (641) | | | (2,707) | |
| Net loss | (25,512) | | | (14,608) | | | (44,970) | | | (27,523) | |
| Cumulative dividends allocated to preferred stockholders | (3,937) | | | (2,686) | | | (7,742) | | | (5,164) | |
| Net loss attributable to common stockholders | $ | (29,449) | | | $ | (17,294) | | | $ | (52,712) | | | $ | (32,687) | |
| Net loss attributable per share to common stockholders | | | | | | | |
| Basic and diluted | $ | (0.36) | | | $ | (0.22) | | | $ | (0.66) | | | $ | (0.43) | |
| Weighted-average shares used to compute net loss attributable per share to common stockholders | | | | | | | |
| Basic and diluted | 80,722,160 | | | 77,197,805 | | | 79,595,320 | | | 76,774,455 | |
MONDEE HOLDINGS, INC.
Condensed Consolidated Statements of Cash Flows
(In thousands) (unaudited)
| | | | | | | | | | | |
| Six Months Ended
June 30, |
| 2024 | | 2023 |
| Cash flows from operating activities | | | |
| Net loss | $ | (44,970) | | | $ | (27,523) | |
| Adjustments to reconcile net loss to net cash provided by (used in) operating activities | | | |
| Depreciation and amortization | 9,216 | | | 7,189 | |
| Deferred taxes | 427 | | | 62 | |
| Provision for credit losses, net | (54) | | | (701) | |
| Stock-based compensation | 16,813 | | | 7,365 | |
| Non-cash lease expense and lease impairment charges | 914 | | | 457 | |
| Amortization of loan origination fees | 4,183 | | | 4,126 | |
| Payment in kind interest expense | 6,498 | | | 2,807 | |
| Gain on termination of lease | (458) | | | (337) | |
| Unrealized (gain) loss on foreign currency exchange derivatives | (570) | | | 129 | |
| Change in the estimated fair value of earn-out consideration and warrants | 1,262 | | | 329 | |
| Payment of earn-out consideration in excess of acquisition date fair value | (1,873) | | | — | |
| Changes in operating assets and liabilities: | | | |
| Accounts receivable | 12,189 | | | (20,468) | |
| Amounts receivable from related parties | (16) | | | — | |
| Contract assets | (4,871) | | | (8,795) | |
| Prepaid expenses and other current assets | 787 | | | 494 | |
| | | |
| Other non-current assets | (419) | | | (377) | |
| Amounts payable to related parties | — | | | 25 | |
| Accounts payable | 13,280 | | | 24,667 | |
| Accrued expenses and other liabilities | 1,357 | | | (262) | |
| Deferred revenue | (1,780) | | | (985) | |
| Operating lease liabilities | (853) | | | (608) | |
| Net cash provided by (used in) operating activities | 11,062 | | | (12,406) | |
| Cash flows from investing activities | | | |
| Capital expenditures | (7,785) | | | (4,474) | |
| Cash paid for acquisitions, net of cash acquired | (139) | | | (21,919) | |
| Purchase of restricted short term investments | — | | | (231) | |
| | | |
| Net cash used in investing activities | (7,924) | | | (26,624) | |
| Cash flows from financing activities | | | |
| Repayment of debt | (1,900) | | | (2,063) | |
| Payment of preferred stock offering costs | (28) | | | — | |
| | | | | | | | | | | |
| Six Months Ended
June 30, |
| 2024 | | 2023 |
| Loan origination fee for long term debt | (79) | | | (615) | |
| Payments of tax on vested restricted stock units | (793) | | | — | |
| Proceeds from common stock issued in connection with employee stock purchase plan | 84 | | | — | |
| Payment of earn-out consideration up to acquisition date fair value | (2,460) | | | — | |
| Payment of deferred consideration for Interep acquisition | (120) | | | — | |
| Payment of offering costs | — | | | (3,672) | |
| Proceeds from long term debt | — | | | 15,000 | |
| Net cash (used in) provided by financing activities | (5,296) | | | 8,650 | |
| Effect of exchange rate changes on cash, cash equivalents, and restricted cash | (1,523) | | | 528 | |
| Net decrease in cash, cash equivalents, and restricted cash | (3,681) | | | (29,852) | |
| Cash, cash equivalents, and restricted cash at beginning of period | 34,666 | | | 78,841 | |
| Cash, cash equivalents and restricted cash at end of period | $ | 30,985 | | | $ | 48,989 | |
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Operating Metrics
This press release also includes certain operating metrics that the Company believes are useful in providing additional information in assessing the overall performance of Mondee’s business.
Transactions are defined as the number of travel reservations that were processed on Mondee’s platform during the period. A single transaction could include an airline ticket, a hotel or hospitality accommodation, and any number of ancillaries offered on the platform. Gross bookings are defined as the total dollar value, generally inclusive of taxes and fees, of all travel reservations through our platform between a third-party seller or service provider and the traveler, net of cancellations. Take rate is defined as revenues as a percentage of gross bookings. Mondee generates revenue from service fees earned on these transactions and, accordingly its revenue increases or decreases based on the increase or decrease in either or both the number or value of transactions Mondee processes. Revenue will increase as a result of the expansion in Mondee's distribution platform and/or as a result of an increase in service fees from higher value services offered on the platform.
Use of Non-GAAP Measures
In addition to disclosing financial measures prepared in accordance with generally accepted accounting principles in the United States (“GAAP”), this press release and the accompanying tables include the following non-GAAP measures: adjusted EBITDA, adjusted net loss, and adjusted net loss per share.
Adjusted EBITDA is defined as net loss before 1) interest expense, net; 2) benefit (provision) for income taxes; 3) depreciation and amortization; 4) stock-based compensation expense; and 5) certain other expenses. The most directly comparable GAAP measure is net loss.
Adjusted net loss is defined as net loss before 1) stock-based compensation and related payroll tax expense; 2) amortization of intangibles; 3) income tax benefit (provision); and 4) and certain other expenses. The most directly comparable GAAP measure is net loss.
Adjusted net loss per share is defined as adjusted net loss plus cumulative dividends allocated to preferred stockholders divided by the average number of basic or diluted (whichever is applicable) shares of common stock outstanding during the period.
Mondee believes these non-GAAP financial measures provide investors and other users of this financial information consistency and comparability with its past financial performance and facilitates period-to-period comparisons of its results of operations. With respect to adjusted EBITDA and adjusted net loss, Mondee believes these non-GAAP financial measures are useful in evaluating the Company’s profitability relative to the amount of revenue generated, excluding the impact of stock-based compensation expense and certain other expenses and/or non-cash expenses. Mondee also believes non-GAAP financial measures are useful in evaluating its operating performance compared to that of other companies in its industry, as these metrics eliminate the effects of stock-based compensation, which may vary for reasons unrelated to overall operating performance.
Mondee uses these non-GAAP financial measures in conjunction with traditional GAAP measures as part of its overall assessment of the Company’s performance, including the preparation of its annual operating budget and quarterly forecasts, and to evaluate the effectiveness of its business strategies. Mondee’s definition may differ from the definitions used by other companies and therefore, comparability may be limited. In addition, other companies may not publish this or similar metrics. Thus, Mondee’s non-GAAP financial measures should be considered in addition to, not as a substitute for, nor superior to or in isolation from, measures prepared in accordance with GAAP.
The following tables provides key metrics and a detailed reconciliation (unaudited) of adjusted EBITDA:
| | | | | | | | | | | |
($ in thousands) | | | |
| KEY METRICS | Q2 24 | Q1 24 | Q2 23 |
| Transactions | 1,133,997 | | 1,075,437 | | 721,464 | |
| Take rate | 8.6% | 8.2% | 8.4% |
| Gross bookings | $677,957 | $708,076 | $679,244 |
| Net revenues | $58,326 | $58,021 | $56,771 |
| YoY Growth | 2.7% | 16.2% | 24.3% |
| QoQ Growth | 0.5% | (6.6)% | 13.7% |
| | | |
| ADJUSTED EBITDA RECONCILIATION | Q2 24 | Q1 24 | Q2 23 |
| Net income (loss) | $ | (25,512) | | $ | (19,458) | | $ | (14,608) | |
| Interest expense (net) | 12,618 | | 9,763 | | 8,125 | |
| Stock-based compensation expense | 11,512 | | 5,307 | | 4,804 | |
| Payroll tax expense related to stock-based compensation | 479 | | — | | 86 | |
| Depreciation & amortization | 3,653 | | 5,563 | | 3,803 | |
| Restructuring expense | 158 | | (289) | | (168) | |
| Changes in fair value of Warrant liability | 7 | | (42) | | (393) | |
| | | |
| Benefit (provision) for income taxes | (4) | | 645 | | 2,008 | |
| | | |
| | | |
| M&A costs | 15 | | 618 | | 365 | |
| Financing and refinancing related costs | 9 | | 625 | | 139 | |
| US divestiture and transition service expense | — | | 240 | | — | |
| Foreign currency losses (gains) | 2,612 | | 665 | | (984) | |
| Change in fair value of acquisition earn-out liability | 58 | | 1,239 | | 530 | |
| Certain other expenses | 506 | | 180 | | 731 | |
Adjusted EBITDA1 | $ | 6,111 | | $ | 5,056 | | $ | 4,438 | |
| Adjusted EBITDA margin | 10.5 | % | 8.7 | % | 7.8 | % |
1Adjusted EBITDA has been conformed to the current period presentation for period over period comparability.
The following table reconciles net loss to Adjusted EBITDA for the six months ended June 30, 2024 and 2023, respectively:
| | | | | | | | | | | | | | | | | | | |
| Six Months Ended
June 30, | | | | | | |
| ($ in thousands) | 2024 | | 2023 | | | | | | | | |
| Net loss | $ | (44,970) | | | $ | (27,523) | | | | | | | | | |
| Interest expense, (net) | 22,381 | | | 15,995 | | | | | | | | | |
| Stock-based compensation and related payroll tax expense | 17,298 | | | 7,451 | | | | | | | | | |
| Depreciation and amortization | 9,216 | | | 7,189 | | | | | | | | | |
| Restructuring expense, net | (131) | | | 1,361 | | | | | | | | | |
| (Benefit) provision for income taxes | 641 | | | 2,707 | | | | | | | | | |
| Changes in fair value of warrant liabilities | (35) | | | (372) | | | | | | | | | |
| Changes in fair value of earn-out liabilities | 1,297 | | | 701 | | | | | | | | | |
| Acquisition and integration related costs | 633 | | | 644 | | | | | | | | | |
| Financing and refinancing related costs | 634 | | | 545 | | | | | | | | | |
| Certain other expenses | 926 | | | 1,203 | | | | | | | | | |
| Foreign currency losses (gains) | 3,277 | | | (1,306) | | | | | | | | | |
Adjusted EBITDA1 | $ | 11,167 | | | $ | 8,595 | | | | | | | | | |
1Adjusted EBITDA has been conformed to the current period presentation for period over period comparability.
The following table (unaudited) reconciles net loss to Adjusted Net Loss for the three and six months ended June 30, 2024 and 2023, respectively:
Adjusted Net Loss
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Three Months Ended
June 30, | | | | | Six Months Ended
June 30, | | | | | | | | | |
| ($ in thousands) | 2024 | | 2023 | | | | | | 2024 | | 2023 | | | | | | | | | | | | |
| Net loss | $ | (25,512) | | | $ | (14,608) | | | | | | | $ | (44,970) | | | $ | (27,523) | | | | | | | | | | | | | |
| Stock-based compensation and related payroll tax expense | 11,991 | | | 4,804 | | | | | | | 17,298 | | | 7,451 | | | | | | | | | | | | | |
| Amortization of intangibles | 2,742 | | | 2,329 | | | | | | | 5,851 | | | 4,290 | | | | | | | | | | | | | |
| Benefit (provision) for income taxes | (4) | | | 2,008 | | | | | | | 641 | | | 2,707 | | | | | | | | | | | | | |
Certain other expenses1 | 753 | | | 1,204 | | | | | | | 3,324 | | | 4,082 | | | | | | | | | | | | | |
| Adjusted net loss | $ | (10,030) | | | $ | (4,263) | | | | | | | $ | (17,856) | | | $ | (8,993) | | | | | | | | | | | | | |
1 Includes changes in fair value of earn-out liabilities, change in fair value of warrant liabilities, restructuring expense, acquisition and integration related costs, and certain other expenses.
The following table reconciles net loss per share to Adjusted Net Loss per share for the three and six months ended June 30, 2024 and 2023, respectively:
Adjusted Net Loss Per Share
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Three Months Ended
June 30, | | Six Months Ended
June 30, | | | | | |
| $ in thousands, except loss per share | 2024 | | 2023 | | 2024 | | 2023 | | | | | | | | |
| Net loss | $ | (25,512) | | | $ | (14,608) | | | $ | (44,970) | | | $ | (27,523) | | | | | | | | | |
| Cumulative dividends allocated to preferred stockholders | (3,937) | | | (2,686) | | | (7,742) | | | (5,164) | | | | | | | | | |
| Net loss attributable to common stockholders, basic and diluted | $ | (29,449) | | | $ | (17,294) | | | $ | (52,712) | | | $ | (32,687) | | | | | | | | | |
| Weighted average shares outstanding, basic and diluted | 80,722,160 | | | 77,197,805 | | | 79,595,320 | | | 76,774,455 | | | | | | | | | |
| Basic and diluted net loss per share | $ | (0.36) | | | $ | (0.22) | | | $ | (0.66) | | | $ | (0.43) | | | | | | | | | |
| | | | | | | | | | | | | | | |
| Adjusted net loss | $ | (10,030) | | | $ | (4,263) | | | (17,856) | | | $ | (8,993) | | | | | | | | | |
| Cumulative dividends allocated to preferred stockholders | (3,937) | | | (2,686) | | | (7,742) | | | (5,164) | | | | | | | | | |
| Adjusted net loss attributable to common stockholders, basic and diluted | $ | (13,967) | | | $ | (6,949) | | | $ | (25,598) | | | $ | (14,157) | | | | | | | | | |
| Weighted average shares outstanding, basic and diluted | 80,722,160 | | | 77,197,805 | | | 79,595,320 | | | 76,774,455 | | | | | | | | | |
Adjusted net loss per share | $ | (0.17) | | | $ | (0.09) | | | $ | (0.32) | | | $ | (0.18) | | | | | | | | | |
For Further Information, Contact:
Public Relations
pr@mondee.com
Investor Relations
ir@mondee.com
v3.24.2.u1
Cover
|
Aug. 14, 2024 |
| Cover [Abstract] |
|
| Document Type |
8-K
|
| Document Period End Date |
Aug. 14, 2024
|
| Entity Registrant Name |
Mondee Holdings, Inc
|
| Entity Incorporation, State or Country Code |
DE
|
| Entity File Number |
001-39943
|
| Entity Tax Identification Number |
88-3292448
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| Entity Address, Address Line One |
10800 Pecan Park Blvd
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Suite 400
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| Entity Address, City or Town |
Austin
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TX
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78750
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866
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855-9630
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| Title of 12(b) Security |
Class A common stock, $0.0001 par value per share
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MOND
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NASDAQ
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