Document


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

May 1, 2020
Date of Report (date of earliest event reported)

Franchise Group, Inc.
(Exact name of registrant as specified in its charter)

Delaware
(State or Other Jurisdiction
of Incorporation)
001-35588
(Commission
File Number)
27-3561876
(IRS Employer
Identification No.)
 
1716 Corporate Landing Parkway
Virginia Beach, Virginia 23454
(Address of Principal Executive Offices) (ZIP Code)
 
(757) 493-8855
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Exchange Act:
Title of each class
Trading
Symbol(s)
 Name of each exchange
on which registered
Common Stock, $0.01 par value
FRG
NASDAQ Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐






Item 1.01    Entry into a Material Definitive Agreement.

Amendments to Franchise Group Credit Agreements
 
On May 1, 2020, Franchise Group Intermediate Holdco, LLC, a Delaware limited liability company (“Lead Borrower”) and an indirect subsidiary of Franchise Group, Inc., a Delaware corporation (the “Company”), Franchise Group New Holdco, LLC, a Delaware limited liability company (“Global Parent”), and various subsidiaries of Global Parent entered into (i) a Limited Waiver, Joinder and Amendment Number Two to Credit Agreement (the “FRG Term Loan Amendment”) with the Term Lenders (as defined below) party thereto, GACP Finance Co., LLC, as administrative agent (the “Term Administrative Agent”), and Kayne Solutions Fund, L.P., as collateral agent (the “Term Collateral Agent”), which amended that certain Credit Agreement, dated as of February 14, 2020 (as amended by Amendment Number One to Credit Agreement, dated as of March 13, 2020, the “Existing FRG Term Loan Credit Agreement”, and the Existing FRG Term Loan Credit Agreement as amended by the FRG Term Loan Amendment, the “FRG Term Loan Credit Agreement”), by and among Lead Borrower, Global Parent, various subsidiaries of Global Parent, various lenders from time to time party thereto (the “Term Lenders”), the Term Administrative Agent and the Term Collateral Agent and (ii) a Joinder and Amendment Number Three to ABL Credit Agreement (the “FRG ABL Amendment”) with the ABL Lenders (as defined below) party thereto and GACP Finance Co., LLC, as administrative agent and collateral agent (in such capacities, the “ABL Agent”), which amended that certain ABL Credit Agreement, dated as of February 14, 2020 (as amended by Amendment Number One to ABL Credit Agreement, dated as of March 13, 2020, and Limited Waiver and Amendment Number Two to ABL Credit Agreement, dated as of April 3, 2020, the “Existing FRG ABL Credit Agreement”, and the Existing FRG ABL Credit Agreement as amended by the FRG ABL Amendment, the “FRG ABL Credit Agreement”), by and among Lead Borrower, Global Parent, various subsidiaries of Global Parent, various lenders from time to time party thereto (the “ABL Lenders”) and the ABL Agent.

The FRG Term Loan Amendment and the FRG ABL Amendment provided for the joinder of Franchise Group Intermediate L 1, LLC, an indirect subsidiary of the Company, and each of its direct and indirect subsidiaries (collectively, the “Liberty Tax Entities”), to the FRG Term Loan Credit Agreement and the FRG ABL Credit Agreement, respectively, as borrowers thereunder, and in connection therewith, certain related security documents provided for the Liberty Tax Entities to grant or continue to grant liens on substantially all of their assets to secure the obligations under the FRG Term Loan Credit Agreement and the FRG ABL Credit Agreement. Further, the FRG Term Loan Amendment and the FRG ABL Amendment amended the Existing FRG Term Loan Credit Agreement and the Existing FRG ABL Credit Agreement, respectively, to, among other things, (i) permit certain ordinary course and otherwise anticipated activities of the Liberty Tax Entities and (ii) make certain technical modifications related to the COVID-19 pandemic. The FRG Term Loan Amendment also waived an event of default existing under the Existing FRG Term Loan Credit Agreement as a result of a cross-default to certain events of default under the Existing FRG ABL Credit Agreement. Such events of default under the Existing FRG ABL Credit Agreement were previously waived by the ABL Lenders and the ABL Agent.

The foregoing descriptions are subject to, and qualified in their entirety by, the full texts of each of the FRG Term Loan Amendment and the FRG ABL Amendment, each of which is incorporated herein by reference to Exhibits 10.1 - 10.2 to this Current Report on Form 8-K, respectively.

Item 9.01. Financial Statements and Exhibits.
(c) Exhibits
The following exhibits are filed with this Current Report on Form 8-K:

*Pursuant to Item 601(b)(10) of Regulation S-K, certain annexes to the agreement have not been filed herewith. The registrant agrees to furnish supplementally a copy of any omitted annex to the Securities and Exchange Commission upon request.





EXHIBIT INDEX
Exhibit No.
Description of Exhibits


*Pursuant to Item 601(b)(10) of Regulation S-K, certain annexes to the agreement have not been filed herewith. The registrant agrees to furnish supplementally a copy of any omitted annex to the Securities and Exchange Commission upon request.







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.
 
 
 
 
 
 
 
By:
/s/ Eric Seeton
 
 
Eric Seeton
 
 
Chief Financial Officer
 
 
 
Dated: May 7, 2020
 
 





Exhibit
Exhibit 10.1
LIMITED WAIVER, JOINDER AND AMENDMENT NUMBER TWO
TO CREDIT AGREEMENT
THIS LIMITED WAIVER, JOINDER AND AMENDMENT NUMBER TWO TO CREDIT AGREEMENT (this “Amendment No. 2”), dated as of May 1, 2020, is entered into by and among GACP FINANCE CO., LLC (“GACP”), in its capacity as administrative agent for each of the Lenders (in such capacity, “Agent”), FRANCHISE GROUP NEW HOLDCO, LLC, a Delaware limited liability company (“Global Parent”), FRANCHISE GROUP INTERMEDIATE HOLDCO, LLC, a Delaware limited liability company (“Lead Borrower”), AMERICAN FREIGHT GROUP, LLC, a Delaware limited liability company (“AFG”), certain other Subsidiaries of Lead Borrower party hereto as Borrowers (together with Lead Borrower and AFG, each individually and collectively, jointly and severally, “Borrower”), the other Loan Parties party hereto and the lenders identified on the signature pages hereof (such lenders, and the other lenders party to the below-defined Credit Agreement, together with their respective successors and permitted assigns, each individually, a “Lender”, and collectively, the “Lenders”), and in light of the following:
W I T N E S S E T H
WHEREAS, Global Parent, Borrower, Lenders, the other Loan Parties and Agent are parties to that certain Credit Agreement, dated as of February 14, 2020 (as amended by that certain Amendment Number One to Credit Agreement, dated as of March 13, 2020, the “Existing Credit Agreement”, and the Existing Credit Agreement as amended by this Amendment No. 2, the “Credit Agreement”);
WHEREAS, as of the date hereof, the Event of Default listed on Annex A attached hereto (the “Specified Event of Default”) has occurred and is continuing;
WHEREAS, Borrower has requested that the Lenders and the Agent (1) waive the Specified Event of Default and (2) make certain amendments to the Existing Credit Agreement;
WHEREAS, the Borrower is required to join the Persons listed on Schedule I attached hereto (such Persons, the “Liberty Tax Entities”) as parties to the Credit Agreement pursuant to the terms of the Credit Agreement (the “Joinder”);
WHEREAS, upon the terms and conditions set forth herein, Agent and Required Lenders have agreed to waive the Specified Event of Default, and to make certain amendments, including certain amendments to facilitate the Joinder, to the Existing Credit Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.Defined Terms. All initially capitalized terms used herein (including the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in Section 1.01 of the Credit Agreement.
2.Amendments to Credit Agreement. Subject to the satisfaction (or waiver in writing by the Required Lenders) of the conditions precedent set forth in Section 5 hereof, the Existing Credit Agreement shall be amended to reflect the changes which are attached as Annex B hereto, such that on the Amendment Effective Date (as defined below) the terms set forth in Annex B hereto which appear in bold and double underlined text (inserted text) shall be added to the Existing Credit Agreement and the terms appearing as text which

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is stricken (deleted text) shall be deleted from the Existing Credit Agreement, (b) Schedules 4.1, 4.2, 4.12, 4.24, 4.25 and 4.30 to the Existing Credit Agreement shall be amended and restated in their entirety as attached in Annex C hereto and (c) Schedules 1.1, 4.13, 4.27, 4.28, 6.1, 6.2, 6.7, 6.12, 6.17 and 7.1 to the Existing Credit Agreement shall be supplemented as attached in Annex D hereto.
3.Waiver. Subject to the satisfaction (or waiver in writing by the Required Lenders) of the conditions set forth in Section 5 below and in reliance upon the representations and warranties set forth in Section 6 below, Agent and the Required Lenders hereby waive the Specified Event of Default. For the avoidance of doubt, the foregoing waiver shall not be deemed to be a waiver of any other existing or hereafter arising Defaults or Event of Default or any other deviation from the express terms of the Credit Agreement or any other Loan Document. This is a limited waiver and shall not be deemed to constitute a consent or waiver of any other term, provision or condition of the Credit Agreement or any other Loan Document, as applicable, or to prejudice any right or remedy (except with respect to the Specified Event of Default) that Agent or any Required Lender may now have or may have in the future under or in connection with the Credit Agreement or any other Loan Document.
4.Joinder. The Liberty Tax Entities hereby acknowledge, agree and confirm that, by their execution of this Amendment No. 2, the Liberty Tax Entities will be deemed to be “Borrowers” for all purposes of the Credit Agreement and shall have all of the rights and obligations of a Borrower thereunder as if the Liberty Tax Entities had executed the Credit Agreement. The Liberty Tax Entities hereby ratify, as of the date hereof, and agree to be bound by, on and after the date hereof, all of the terms, provisions and conditions contained in the Credit Agreement applicable to a Borrower, including, without limitation, (a) all of the representations and warranties of the Borrowers set forth in Article IV of the Credit Agreement and (b) all of the covenants set forth in Article V and Article VI of the Credit Agreement. Without limiting the generality of the foregoing terms of this paragraph, as of the date hereof, the Liberty Tax Entities (i) are hereby made a party to the Credit Agreement and the other Loan Documents as Borrowers thereunder with the same force and effect as if originally named therein as Borrowers and the Liberty Tax Entities hereby jointly and severally assume and agree to pay and perform all obligations of a Borrower under the Credit Agreement and each of the other Loan Documents, (ii) hereby jointly with all other Borrowers and Guarantors and severally agree to pay in full the Obligations under the Credit Agreement and the other Loan Documents, and (iii) hereby expressly assume all obligations and liabilities of a Borrower under the Credit Agreement and the other Loan Documents.
5.Conditions Precedent to Amendment. The satisfaction (or waiver in writing by Agent and Required Lenders) of each of the following shall constitute conditions precedent to the effectiveness of this Amendment No. 2 (such date being the “Amendment Effective Date”):
(a)    Agent shall have received this Amendment No. 2, duly executed by the parties hereto, and the same shall be in full force and effect.
(b)    Agent shall have received a copy of that certain Joinder and Amendment Number Three to ABL Credit Agreement, dated as of the date hereof, by and among the Borrowers, the other loan parties party thereto, the lenders party thereto and GACP, as agent, and the same shall be in full force and effect.
(c)    Agent shall have received the Consolidated, Supplemented, Amended and Restated Security Agreement, by and among the Grantors (as defined therein) and Kayne Solutions Fund, L.P., a Delaware limited partnership, as the Collateral Agent, dated as of the date hereof, duly executed by the parties thereto, and the same shall be in full force and effect.

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(d)     Agent shall have received signed signature pages or joinders, as applicable, to the Term Notes from each of the Liberty Tax Entities.
(e)    After giving effect to this Amendment No. 2, with respect to Global Parent and its Subsidiaries, the representations and warranties contained herein, in the Credit Agreement, and in the other Loan Documents, in each case, shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties are true and correct in all respects subject to such qualification) on and as of the date hereof, to the same extent as though made on and as of the date hereof, except to the extent that such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (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.
(f)    Other than the Specified Event of Default, no event has occurred and is continuing or would result from the consummation of the transactions contemplated herein that would constitute a Default or Event of Default.
(g)    Agent shall have received (i) a certificate as to the good standing of each of the Liberty Tax Entities as of a recent date, from such Secretary of State or similar Governmental Authority; (ii) a certificate of the Secretary or other officer of each Liberty Tax Entity dated the Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Liberty Tax Entity as in effect on the Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Liberty Tax Entity on the Amendment Effective Date, which authorize the execution, delivery and performance, as applicable, of the Loan Documents and the applicable amendments and joinders thereto, and, in the case of the Borrowers, the borrowings thereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization of each Liberty Tax Entity as in effect on the Amendment Effective Date and that such certificate or articles of incorporation have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Liberty Tax Entity countersigned by another officer as to the incumbency and specimen signature of the Secretary or other officer executing the certificate pursuant to clause (ii) above.
(h)    In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected security interest in personal property Collateral, Collateral Agent shall have received:
i.
evidence satisfactory to Collateral Agent of the compliance by each of the Liberty Tax Entities of its obligations under the Collateral Documents to which it is a party (including, without limitation, its obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, and any agreements governing deposit and/or securities accounts as provided therein), together with (A) appropriate financing statements on Form UCC 1 duly filed in such office or offices as may be necessary or, in the opinion of

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Collateral Agent, desirable to perfect the security interests purported to be created by each Collateral Document, and (B) evidence satisfactory to Agent of the filing of such UCC 1 financing statements,
ii.
subject to Section 8(c) below, original certificates (if any) with respect to all of the Capital Stock issued by each of the Liberty Tax Entities, together with undated powers executed in blank with respect thereto (provided, that any such certificates issued by any Person other than the Liberty Tax Entities shall only be required to be delivered on the date hereof to the extent timely received after using commercially reasonable efforts to obtain them), and
iii.
a completed Perfection Certificate Supplement, dated the date hereof and executed by an Authorized Officer of each of the Borrowers, together with all attachments contemplated thereby.
(i)    Lenders and their respective counsel shall have received executed copies of the favorable written opinions of counsel for the Loan Parties (other than for the Loan Parties organized under the laws of the state of Florida and the Loan Parties organized under the province of Ontario), as to such matters as Agent may reasonably request, dated as of the date hereof and otherwise in form and substance satisfactory to Agent (and such counsel is hereby instructed to deliver such opinion to Lenders).
(j)    On the Amendment Effective Date, Agent shall have received a solvency certificate of the chief executive officer, chief operating officer or chief financial officer of the Lead Borrower substantially in the form of Exhibit F-2 of the Credit Agreement, dated as of the Amendment Effective Date and addressed to the Agent and Lenders.
(k)    Agent shall have received (i) copy of a duly executed payoff letter (“Payoff Letter”), in form and substance satisfactory to Agent, executed by CIBC Bank USA and acknowledged by Liberty Borrower and each other Liberty Tax Entity party thereto, together with (A) copies of UCC-3 termination statements or other appropriate termination statements, each in form and substance satisfactory to Agent, to be filed on or before the Amendment Effective Date and (B) any other releases, terminations or other documents reasonably required by Agent to evidence the payoff of Indebtedness owed by Liberty Borrower to CIBC Bank USA and (ii) evidence that Liberty Borrower’s obligations under the credit facility with CIBC Bank USA has been paid in full and all other Liens on assets of Liberty Borrower or any other Liberty Tax Entities party to such credit facility are or will be released and terminated in accordance with the Payoff Letter.
(l)    Lead Borrower shall pay substantially concurrently with the closing of the transactions evidenced by this Amendment No. 2, all fees, costs, expenses and taxes then payable pursuant to the Credit Agreement and Section 7 of this Amendment No. 2.
6.
Representations and Warranties. Each Loan Party (including the Liberty Tax Entities), jointly and severally, hereby:
(a)    represents and warrants that, after giving effect to any updated schedules attached hereto, each of the representations and warranties made to Agent and Lenders under the Credit Agreement and all of the other Loan Documents are true and correct in all material respects on and as of the date hereof (after giving effect to this Amendment No. 2 and the other documents executed in connection with this Amendment No. 2) except to the extent that (i) such representations or warranties are qualified by a materiality standard, in which case they shall be true and correct in all respects, or (ii) such representations or warranties expressly

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relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (or, if such representations or warranties are qualified by a materiality standard, in all respects as of such earlier date));
(b)    in the case of the Loan Parties other than the Liberty Tax Entities, reaffirms all of the covenants contained in the Credit Agreement;
(c)    represents and warrants that, after giving effect to updated Schedule 4.12 attached hereto, Schedule 4.12 contains a true, accurate, and complete list of all Material Real Estate Assets as of the date hereof and as of the Amendment Effective Date;
(d)    represents and warrants that, after giving effect to this Amendment No. 2, no Default or Event of Default has occurred and is continuing;
(e)    represents and warrants that the execution, delivery and performance by each Loan Party of this Amendment No. 2 and the other documents, agreements and instruments executed by any Loan Party in connection herewith (collectively, together with this Amendment No. 2, the “Amendment Documents”) and the consummation of the transactions contemplated hereby or thereby, are within such Loan Party’s powers, have been duly authorized by all necessary organizational action, and do not contravene (i) the Organizational Documents of such Loan Party or (ii) any law or any Contractual Obligation of any Loan Party, except, for purposes of this clause (ii), to the extent such contravention would not reasonably be expected to have a Material Adverse Effect;
(f)    represents and warrants that no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority, any stockholders, members, partners or any other equityholders of any Loan Party, and any Person pursuant to any Contractual Obligation, is required for the due execution, delivery and performance by any Loan Party of any Amendment Document to which it is a party that has not already been obtained if the failure to obtain such authorization, approval or other action, or to provide such notice or make such filing, could reasonably be expected to result in a Material Adverse Effect;
(g)    represents and warrants that each Amendment Document has been duly executed and delivered by each Loan Party party thereto; and
(h)    represents and warrants that this Amendment No. 2 constitutes, and each other Amendment Document to be executed on the date hereof will constitute, upon execution, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with its respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization or moratorium or similar laws relating to or affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
7.Payment of Costs and Fees. Lead Borrower shall pay to Agent and each Lender all expenses required to be paid pursuant to Section 10.02 of the Credit Agreement in connection with the preparation, negotiation, execution and delivery of this Amendment No. 2 and any documents and instruments relating hereto.
8.Post-Closing Obligations.

(a)    No later than 90 days after the Amendment Effective Date (or such later date to which the Collateral Agent may agree in its sole discretion), Liberty Tax Entities shall execute and deliver to Collateral Agent, with respect to any Material Real Estate Asset located in the United States, Mortgage Deliverables.

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(b)    As soon as practicable after the Amendment Effective Date, the Liberty Tax Entities formed under the laws of Virginia shall deliver to Agent and Collateral Agent the certified charter for such Loan Party.
(c)    No later than 30 days after the Amendment Effective Date (or such later date to which the Collateral Agent may agree in its sole discretion), the Loan Parties shall have delivered to the Collateral Agent (i) the certificates representing the Pledged Interests (as defined in the Security Agreement) in Liberty Tax Holding Corporation and Liberty Tax Service Inc., together with undated powers (or other instruments of transfer acceptable to Collateral Agent) endorsed in blank by the applicable Loan Party and (ii) all Pledged Notes (as defined in the Security Agreement) owned by the Liberty Tax Entities and required to be delivered to the Collateral Agent pursuant to Section 6(a) of the Security Agreement, together with undated powers (or other relevant documents of transfer acceptable to Collateral Agent) endorsed in blank by the applicable Liberty Tax Entity.
(d)    No later than 45 days after the Amendment Effective Date (or such later date to which the Collateral Agent may agree in its sole discretion), the Loan Parties shall have delivered to the Collateral Agent (i) a security agreement, deed of hypothec, and/or such other agreements, instruments and documents as reasonably requested by the Collateral Agent, each in form and substance satisfactory to the Collateral Agent, executed and delivered by Liberty Tax Holding Corporation and Liberty Tax Service Inc. (the “Canadian Security Documents”), and (ii) (A) financing statements in form appropriate for filing under the Personal Property Security Act (Ontario) and the regulations promulgated thereunder as the Collateral Agent may deem desirable to perfect the security interests purported to be created by each Canadian Security Document, and (B) evidence satisfactory to the Collateral Agent of the filing of such financing statements.
(e)    No later than 45 days after the Amendment Effective Date (or such later date to which the Agent may agree in its sole discretion), the Loan Parties shall have delivered to the Agent copies of duly executed terminations or releases, each in form and substance reasonably satisfactory to Agent, to evidence the termination and release of the SunTrust IP Filings.
9.APPLICABLE LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL PROVISIONS. THIS AMENDMENT NO. 2 SHALL BE SUBJECT TO THE PROVISIONS REGARDING APPLICABLE LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL SET FORTH IN SECTIONS 10.14, 10.15 AND 10.16 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
10.Amendments. This Amendment No. 2 cannot be altered, amended, changed or modified in any respect except in accordance with Section 10.05 of the Credit Agreement.
11.Counterpart Execution. This Amendment No. 2 may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Amendment. The words “execution,” signed,” “signature,” and words of like import in this Amendment No.2 or in any other certificate, agreement or document related to this Amendment No.2 or any other Loan Documents shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign).The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal

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Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
12.Effect on Loan Documents.
(a)    The Credit Agreement, as amended hereby, and each of the other Loan Documents shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment No. 2 shall not operate, except as expressly set forth herein, as a modification or waiver of any right, power, or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document. Except for the amendments to the Credit Agreement expressly set forth herein, the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect. The waivers, consents and modifications set forth herein, if any, are limited to the specifics hereof (including facts or occurrences on which the same are based), shall not apply with respect to any facts or occurrences other than those on which the same are based, shall neither excuse any future non-compliance with the Loan Documents nor, except as expressly set forth in this Amendment No. 2, operate as a waiver of any Default or Event of Default, shall not operate as a consent to any further waiver, consent or amendment or other matter under the Loan Documents, and shall not be construed as an indication that any future waiver or amendment of covenants or any other provision of the Credit Agreement will be agreed to, it being understood that the granting or denying of any waiver or amendment which may hereafter be requested by Borrower remains in the sole and absolute discretion of Agent and Lenders. To the extent that any terms or provisions of this Amendment No. 2 conflict with those of the Credit Agreement or the other Loan Documents, the terms and provisions of this Amendment No. 2 shall control.
(b)    Upon and after the effectiveness of this Amendment No. 2, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “therein”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.
(c)    To the extent that any of the terms and conditions in any of the Loan Documents shall contradict or be in conflict with any of the terms or conditions of the Credit Agreement, after giving effect to this Amendment No. 2, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit Agreement as modified or amended hereby.
(d)    This Amendment No. 2 is a Loan Document.
(e)    Unless the context of this Amendment No. 2 clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”. The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Amendment No. 2 refer to this Amendment No. 2 as a whole and not to any particular provision of this Amendment No. 2. Section, subsection, clause, schedule, and exhibit references herein are to this Amendment No. 2 unless otherwise specified. Any reference in this Amendment No. 2 to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein) Any reference herein to the Obligations shall (i)

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mean “Obligations” as defined in the Credit Agreement (including any expenses, fees or interest that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) and (ii) include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
13.Entire Agreement. This Amendment No. 2, and the terms and provisions hereof, the Credit Agreement and the other Loan Documents constitute the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede any and all prior or contemporaneous amendments or understandings with respect to the subject matter hereof, whether express or implied, oral or written.
14.Integration. This Amendment No. 2, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
15.Reaffirmation of Obligations. Each Loan Party hereby (a) acknowledges and reaffirms its obligations owing to Agent and each Lender under each Loan Document to which it is a party (including, in respect of Global Parent, its Guaranty of the Obligations), and (b) agrees that each of the Loan Documents to which it is a party is and shall remain in full force and effect. Each Loan Party hereby (i) further ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted, pursuant to and in connection with the Security Agreement or any other Loan Document to Collateral Agent, on behalf and for the benefit of each Secured Party, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and (ii) acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof (including, without limitation, from after giving effect to this Amendment No. 2).
16.Severability. In case any provision in this Amendment No. 2 shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment No. 2 and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 

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IN WITNESS WHEREOF, the parties have entered into this Limited Waiver, Joinder and Amendment Number Two as of the date first above written.


FRANCHISE GROUP NEW HOLDCO, LLC,
as Global Parent


By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
FRANCHISE GROUP INTERMEDIATE HOLDCO, LLC,
as Lead Borrower


By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
AMERICAN FREIGHT GROUP, LLC,
as a Borrower


By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
FRANCHISE GROUP NEWCO INTERMEDIATE AF, LLC,
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
AMERICAN FREIGHT HOLDINGS, LLC,
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer

- 9 -



AMERICAN FREIGHT, LLC
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
AMERICAN FREIGHT MANAGEMENT COMPANY, LLC,
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
FRANCHISE GROUP INTERMEDIATE B, LLC,
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
BUDDY’S NEWCO, LLC,
as a Borrower
By: /s/ Michael Bennett    
Name: Michael Bennett
Title: Chief Executive Officer
BUDDY’S FRANCHISING AND LICENSING LLC,
as a Borrower
By: /s/ Michael Bennett    
Name: Michael Bennett
Title: Chief Executive Officer



- 10 -



FRANCHISE GROUP INTERMEDIATE S, LLC,
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
FRANCHISE GROUP NEWCO S, LLC,
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
AMERICAN FREIGHT OUTLET STORES, LLC,
as a Borrower
By: /s/ Will Powell    
Name: Will Powell
Title: President
OUTLET MERCHANDISE, LLC,
as a Borrower
By: /s/ Will Powell    
Name: Will Powell
Title: President
LEASING OPERATIONS, LLC,
as a Borrower
By: /s/ Will Powell    
Name: Will Powell
Title: President

- 11 -



AMERICAN FREIGHT DISCOUNT OUTLET FRANCHISING, LLC,
as a Borrower
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
FRANCHISE GROUP INTERMEDIATE V, LLC,
as a Guarantor
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
FRANCHISE GROUP NEWCO V, LLC,
as a Guarantor
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer
FRANCHISE GROUP INTERMEDIATE L, LLC,
as a Guarantor
By: /s/ Brian Kahn    
Name: Brian Kahn
Title: President and Chief Executive Officer

FRANCHISE GROUP INTERMEDIATE L 1, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

FRANCHISE GROUP INTERMEDIATE L 2, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

- 12 -



JTH TAX LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

SIEMPRETAX+ LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

LIBERTY CREDIT REPAIR, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer and Vice President

JTH FINANCIAL, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

WEFILE LLC

By: /s/ Daniel Brashier                
Name: Daniel Brashier
Title: Treasurer

JTH PROPERTIES 1632, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

LTS PROPERTIES, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

- 13 -



LTS SOFTWARE LLC

By: /s/ Daniel Brashier                
Name: Daniel Brashier
Title: Treasurer

JTH TAX OFFICE PROPERTIES, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

360 ACCOUNTING SOLUTIONS LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer
JTH COURT PLAZA, LLC

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

LIBERTY TAX HOLDING CORPORATION

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

LIBERTY TAX SERVICE INC.

By: /s/ Michael Piper                
Name: Michael Piper
Title: Chief Financial Officer

GACP FINANCE CO., LLC,
as Administrative Agent

By: /s/ Robert Louzan                
Name: Robert Louzan
Title: President

- 14 -



OC II LVS XXV LP,
as a Lender
By: OC II GP LLC, its General Partner

By: /s/ Adam L. Gubner                
Name: Adam L. Gubner
Title: Authorized Person

PIF ONSHORE VI LP,
as a Lender
By: Pacific Investment Management Company LLC, its investment manager

By: /s/ Adam L. Gubner                
Name: Adam L. Gubner
Title: Managing Director

HVS XXIV LLC,
as a Lender
By: /s/ Russell D. Gannaway                
Name: Russell D. Gannaway
Title: Authorized Person

RSF XI LLC,
as a Lender
By: /s/ Russell D. Gannaway                
Name: Russell D. Gannaway
Title: Authorized Person

TOCU XXVIII LLC,
as a Lender
By: /s/ Russell D. Gannaway                
Name: Russell D. Gannaway
Title: Authorized Person

- 15 -



CERBERUS PSERS LEVERED LOAN
OPPORTUNITIES FUND, L.P.
By: Cerberus PSERS Levered Opportunities GP,
LLC
Its: General Partner

By: /s/ Eric Miller                
Name: Eric Miller
Title: Senior Managing Director

CERBERUS ASRS FUNDING LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

CERBERUS FSBA HOLDINGS LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

CERBERUS FSBA LEVERED LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

CERBERUS KRS LEVERED LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

CERBERUS ND LEVERED LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

- 16 -



CERBERUS ONSHORE LEVERED IV LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

CERBERUS PSERS LEVERED LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

CERBERUS STEPSTONE LEVERED LLC

By: /s/ Eric Miller                
Name: Eric Miller
Title: Vice President

KAAMANEN HOLDINGS, LP
By: Kaamanen GP, LLC, its general partner
BY: CBF Manager, L.P., its non-member manager

By: /s/ Eric Miller                
Name: Eric Miller
Title: Senior Managing Director

RELIANCE STANDARD LIFE INSURANCE COMPANY,
By: CBF-D Manager, LLC
Its: Investment Manager

By: /s/ Eric Miller                
Name: Eric Miller
Title: Senior Managing Director

MC INCOME PLUS FINANCING SPV LLC,
as a Lender
By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

- 17 -



MONROE CAPITAL OPPORTUNISTIC PRIVATE CREDIT MASTER FUND SCSP, as a Lender
By: Monroe Capital Management Advisors LLC,
as Investment Manager

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

MONROE CAPITAL PRIVATE CREDIT FUND III (LUX) FINANCING SPV LP, as a Lender
By: Monroe Capital Private Credit Fund III (Lux)
Financing SPV GP LLC, its General Partner

By: Monroe Capital Management Advisors LLC, as
Manager

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

MONROE CAPITAL PRIVATE CREDIT FUND III
(UNLEVERAGED) LP, as a Lender
By: Monroe Capital Private Credit Fund III LLC, its general partner

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

MONROE CAPITAL CORPORATION, as a Lender

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

- 18 -



MONROE CAPITAL PRIVATE CREDIT FUND III
FINANCING SPV LLC, as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND III LP, as Designated Manager

By: MONROE CAPITAL PRIVATE CREDIT FUND III LLC, its general partner

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

MONROE PRIVATE CREDIT FUND A FINANCING SPV LLC, as a Lender
By: MONROE PRIVATE CREDIT FUND A LP, as Designated Manager

By: MONROE PRIVATE CREDIT FUND A LLC, its general partner

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

MONROE (NP) U.S. PRIVATE DEBT FUND LP, as a Lender
By: MONROE (NP) U.S. PRIVATE DEBT FUND GP
LTD, its general partner

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

MONROE CAPITAL FUND SV S.A.R.L., acting in
respect of its FUND III (UNLEVERAGED)
COMPARTMENT, as a Lender
By: Monroe Capital Management Advisors LLC, as
Investment Manager

By: /s/ Jake Silverman                
Name: Jake Silverman
Title: Senior Associate

- 19 -



BTC HOLDINGS SC FUND LLC, as a Lender
By: Blue Torch Credit Opportunities SC
Master Fund LP, its sole member

By: Blue Torch Credit Opportunities SC GP
LLC, its General Partner

By: /s/ Kevin Genda                
Name: Kevin Genda
Title: Authorized Signatory

BTC HOLDINGS FUND I, LLC, as a Lender
By: Blue Torch Credit Opportunities Fund I LP, its sole member

By: Blue Torch Credit Opportunities GP
LLC, its general partner

By: /s/ Kevin Genda                
Name: Kevin Genda
Title: Authorized Signatory

BTC HOLDINGS FUND I-B, LLC, as a Lender
By: Blue Torch Credit Opportunities Fund I LP, its sole member

By: Blue Torch Credit Opportunities GP
LLC, its general partner

By: /s/ Kevin Genda                
Name: Kevin Genda
Title: Authorized Signatory

KAYNE SOLUTIONS FUND, L.P.,
as a Lender
By: Kayne Solutions Fund GP, LLC,
its general partner

By: /s/ Jon Levinson                
Name: Jon Levinson
Title: Managing Partner

- 20 -



KAFRG INVESTORS, L.P.,
as a Lender

By: KAFRG Investors GP, LLC,
its general partner

By: /s/ Jon Levinson                
Name: Jon Levinson
Title: Managing Partner

GACP II, LP, as a Lender

By: /s/ Robert Louzan                
Name: Robert Louzan
Title: President

FLF I AB HOLDINGS FINANCE L.P.,
as a Lender
By: FLF I AB Holdings Finance CM LLC, as
Servicer

By: Fortress Lending I Holdings L.P., its sole
Member

By: Fortress Lending Advisors LLC, its
investment manager

By: /s/ Jennifer Sorkin                
Name: Jennifer Sorkin
Title: Authorized Signatory

DBDB FUNDING LLC,
as a Lender

By: /s/ Jennifer Sorkin                
Name: Jennifer Sorkin
Title: Authorized Signatory

- 21 -



FLF I HOLDINGS FINANCE L.P.,
as a Lender
By: FLF I Holdings Finance CM LLC, as
Servicer

By: Fortress Lending I Holdings L.P., its sole
Member

By: Fortress Lending Advisors LLC, its
investment manager

By: /s/ Jennifer Sorkin                
Name: Jennifer Sorkin
Title: Authorized Person
 


- 22 -



Schedule I

Liberty Tax Entities

Franchise Group Intermediate L 1, LLC
Franchise Group Intermediate L 2, LLC
SiempreTax+ LLC
JTH Tax LLC
Liberty Credit Repair, LLC
Wefile LLC
JTH Court Plaza, LLC
LTS Properties, LLC
LTS Software LLC
JTH Tax Office Properties, LLC
360 Accounting Solutions LLC
JTH Financial, LLC
JTH Properties 1632, LLC
Liberty Tax Holding Corporation
Liberty Tax Service Inc.



- 23 -



Annex A

Specified Event of Default

Event of Default pursuant to Section 8.01(b)(ii) of the Credit Agreement due to the Borrower’s breach of the ABL Credit Agreement prior to the Second Amendment Effective Date



- 24 -



Annex B

Amended Credit Agreement

[See attached.]


- 25 -




ANNEX AB
        
Conformed Copy
        
Execution Version

Amendment Number One to Credit Agreement dated as of March 13, 2020
Limited Waiver, Joinder and Amendment Number Two to Credit Agreement dated as of May 1, 2020

This instrument and the rights and obligations evidenced hereby and any interests or other liens securing such obligations are subordinate in the manner and to the extent set forth in that certain Subordination and Intercreditor Agreement (the “Subordination Agreement”) dated as of February 14, 2020, by and among, inter alia, FRANCHISE GROUP INTERMEDIATE L 2, LLC, a Delaware limited liability company (“Franchise Group 2”), FRANCHISE GROUP INTERMEDIATE L 1, LLC, a Delaware limited liability company (“Franchise Group 1”), JTH TAX LLC, a Delaware limited liability company (“JTH Tax”), SIEMPRETAX+ LLC, a Virginia limited liability company (“Siempre”), JTH FINANCIAL, LLC, a Virginia limited liability company (“JTH Financial”), WEFILE LLC, a Virginia limited liability company (“WeFile”), JTH PROPERTIES 1632, LLC, a Virginia limited liability company (“JTH Properties”), LTS PROPERTIES, LLC, a Virginia limited liability company (“LTS Properties”), LTS SOFTWARE LLC, a Virginia limited liability company (“LTS Software”), JTH TAX OFFICE PROPERTIES, LLC, a Virginia limited liability company (“JTH Tax Office”), 360 ACCOUNTING SOLUTIONS, LLC, a Virginia limited liability company (“360 Accounting”), JTH COURT PLAZA, LLC, a Virginia limited liability company (“JTH Court”), Liberty Tax Credit Repair, LLC, a Virginia limited liability company (“LTCR”), Liberty Tax Holding Corporation Canada, an Ontario Corporation (“LTH”), Liberty Tax Service, Inc., an Ontario Corporation (“LTS Service”), Trilogy Software, Inc., an Ontario Corporation (“Trilogy”; collectively, with Franchise Group 2, Franchise Group 1, JTH Tax, Siempre, JTH Financial, WeFile, JTH Properties, LTS Properties, LTS Software, JTH Tax Office, 360 Accounting, JTH Court, LTCR, LTH, LTS Service and each other Loan Party (as defined in the Senior Credit Agreement as defined below) under the Senior Credit Agreement, and each other Person (as defined below) who guarantees, becomes a borrower with respect to, or grants a lien on its assets to secure Senior Debt (as defined below) from time to time, the “Credit Parties”), GACP FINANCE CO., LLC, as administrative agent for the lenders from time to time party to the Subordinated Credit Agreement (as defined in the Subordination Agreement), KAYNE SOLUTIONS FUND, L.P., as collateral agent for the lenders from time to time party to the Subordinated Credit Agreement (as defined in the Subordination Agreement), and CIBC BANK USA, as administrative agent for the lenders from time to time party to that certain Credit Agreement dated as of May 16, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Senior Credit Agreement”), to the indebtedness (including interest) owed by the Credit Parties, and the security interests and liens securing such indebtedness, pursuant to the Senior Credit Agreement and certain related documents and to indebtedness refinancing the indebtedness under the Senior Credit Agreement and/or such related documents as contemplated by the Subordination Agreement; and each holder of this instrument, by its acceptance hereof, irrevocably agrees to be bound by the provisions of the Subordination Agreement.


CREDIT AGREEMENT

dated as of February 14, 2020
by and among
FRANCHISE GROUP NEW HOLDCO, LLC,
as Global Parent,
FRANCHISE GROUP INTERMEDIATE HOLDCO, LLC,
as Lead Borrower,
certain Subsidiaries of Lead Borrower party hereto as Borrowers,
certain Subsidiaries of Lead Borrower party hereto as Guarantors,
the Lenders from time to time party hereto,
GACP FINANCE CO., LLC,
as Administrative Agent
and
KAYNE SOLUTIONS FUND, L.P.,
as Collateral Agent





TABLE OF CONTENTS

 
 
 
 
Page
ARTICLE I DEFINITIONS AND INTERPRETATION
 
1
 
 
 
 
 
 
Section 1.01    Definitions
 
1
 
Section 1.02    Accounting and Other Terms
 
2547
 
Section 1.03    Construction
 
2548
 
Section 1.04    Time References
 
2549
 
Section 1.05    Effect of Benchmark Transition Event
 
2549
 
Section 1.06    Fiscal Periods
 
2552
 
 
 
 
ARTICLE II LOANS
 
2552
 
 
 
 
 
Section 2.01    Term Loans
 
2552
 
Section 2.02    [Reserved]
 
2553
 
Section 2.03    Protective Advances
 
2553
 
Section 2.04    Pro Rata Shares; Availability of Funds
 
2554
 
Section 2.05    Use of Proceeds
 
2555
 
Section 2.06    Evidence of Debt; Register; Lenders’ Books and Records; Term Notes
 
2555
 
Section 2.07    Interest
 
2555
 
Section 2.08    Conversion/Continuation
 
2556
 
Section 2.09    Default Interest
 
2557
 
Section 2.10    Fees
 
2557
 
Section 2.11    Repayments of Loans and Commitment Reductions
 
2557
 
Section 2.12    Voluntary Prepayments
 
2558
 
Section 2.13    Mandatory Prepayments
 
2559
 
Section 2.14    Application of Prepayments/Reductions
 
2562
 
Section 2.15    General Provisions Regarding Payments
 
2562
 
Section 2.16    Ratable Sharing
 
2564
 
Section 2.17    Making or Maintaining LIBOR Rate Loans
 
2564
 
Section 2.18    Increased Costs
 
2566
 
Section 2.19    Taxes; Withholding, etc
 
2567
 
Section 2.20    Obligation to Mitigate
 
2570
 
Section 2.21    Defaulting Lenders
 
2570
 
Section 2.22    Removal or Replacement of a Lender
 
2571
 
Section 2.23    Joint and Several Liability
 
2572
 
Section 2.24    Lead Borrower
 
2575
 
 
 
 
ARTICLE III CONDITIONS PRECEDENT
 
2575
 
 
 
 
 
Section 3.01    Closing Date
 
2575
 
 
 
 
ARTICLE IV REPRESENTATIONS AND WARRANTIES
 
2579
 
 
 
 
 
Section 4.01    Organization; Requisite Power and Authority; Qualification
 
2579
 
Section 4.02    Capital Stock and Ownership
 
2580

-i-



TABLE OF CONTENTS

 
Section 4.03    Due Authorization
 
2580
 
Section 4.04    No Conflict
 
2580
 
Section 4.05    Governmental Consents
 
2581
 
Section 4.06    Binding Obligation
 
2581
 
Section 4.07    Historical Financial Statements
 
2581
 
Section 4.08    Projections
 
2581
 
Section 4.09    No Material Adverse Effect
 
2581
 
Section 4.10    Adverse Proceedings, etc.
 
2581
 
Section 4.11    Payment of Material Taxes
 
2582
 
Section 4.12    Properties
 
2582
 
Section 4.13    Environmental Matters
 
2582
 
Section 4.14    [Reserved]
 
2583
 
Section 4.14    [Reserved]
 
2583
 
Section 4.16    Governmental Regulation
 
2583
 
Section 4.17    Margin Stock
 
2583
 
Section 4.18    Employee Matters
 
2583
 
Section 4.19    Employee Benefit Plans
 
2583
 
Section 4.20 Certain Fees
 
2584
 
Section 4.21    Solvency
 
2584
 
Section 4.22    [Reserved]
 
2584
 
Section 4.23    Compliance with Statutes, etc
 
2584
 
Section 4.24    Intellectual Property
 
2584
 
Section 4.25    Inventory and Equipment
 
2585
 
Section 4.26    Trademarks and Key Trademark Licenses
 
2585
 
Section 4.27    Insurance
 
2585
 
Section 4.28    Franchise Agreements
 
2585
 
Section 4.29    Permits, etc
 
2586
 
Section 4.30    Cash Management
 
2586
 
Section 4.31    Security Interests
 
2586
 
Section 4.32    PATRIOT ACT
 
2587
 
Section 4.33    OFAC/Sanctions
 
2587
 
Section 4.34    Disclosure
 
2587
 
Section 4.35    Use of Proceeds
 
2588
 
 
 
 
 
ARTICLE V AFFIRMATIVE COVENANTS
 
2588
 
 
 
 
 
 
Section 5.01    Financial Statements and Other Reports
 
2588
 
Section 5.02    Existence
 
2593
 
Section 5.03    Payment of Taxes and Claims
 
2593
 
Section 5.04    Maintenance of Properties
 
2593
 
Section 5.05    Insurance
 
2593
 
Section 5.06    Inspections; Field Examinations and Appraisals
 
2594
 
Section 5.07    Lenders Meetings and Conference Calls
 
2595

-ii-



TABLE OF CONTENTS

 
Section 5.08    Compliance with Laws
 
2595
 
Section 5.09    Environmental
 
2595
 
Section 5.10    Subsidiaries
 
2595
 
Section 5.11    Material Real Estate Assets
 
2597
 
Section 5.12    Location of Inventory and Equipment
 
2597
 
Section 5.13    Further Assurances
 
2598
 
Section 5.14    Corporate Separateness
 
2598
 
Section 5.15    [Reserved]
 
2598
 
Section 5.16    Post-Closing Matters
 
2598
 
Section 5.17    Use of Proceeds
 
2599
 
Section 5.18    Franchise Agreements
 
2599
 
 
 
 
 
ARTICLE VI NEGATIVE COVENANTS
 
2599
 
 
 
 
 
 
Section 6.01    Indebtedness
 
2599
 
Section 6.02    Liens
 
2599
 
Section 6.03    [Reserved]
 
2599
 
Section 6.04    No Further Negative Pledges
 
2599
 
Section 6.05    Restricted Junior Payments
 
25100
 
Section 6.06    Restrictions on Subsidiary Distributions
 
25101
 
Section 6.07    Investments
 
25101
 
Section 6.08    Financial Covenants
 
25102
 
Section 6.09    Fundamental Changes; Disposition of Assets; Acquisitions
 
25104
 
Section 6.10    Disposal of Subsidiary Interests
 
25106
 
Section 6.11    Sales and Lease Backs
 
25106
 
Section 6.12    Transactions with Affiliates
 
25106
 
Section 6.13    Conduct of Business
 
25107
 
Section 6.14    Permitted Activities of Parent Companies
 
25108
 
Section 6.15    Changes to Certain Agreements and Organizational Documents
 
25108
 
Section 6.16    Accounting Methods
 
25109
 
Section 6.17    Cash Management
 
25109
 
Section 6.18    Prepayments of Certain Indebtedness
 
25110
 
Section 6.19    Issuance of Capital Stock
 
25110
 
Section 6.20    Anti-Terrorism Laws
 
25110
 
Section 6.21    Franchise Agreements
 
25111
 
 
 
 
 
ARTICLE VII GUARANTY
 
25111
 
 
 
 
 
 
Section 7.01    Guaranty of the Obligations
 
25111
 
Section 7.02    Contribution by Guarantors
 
25111
 
Section 7.03    Payment by Guarantors
 
25111
 
Section 7.04    Liability of Guarantors Absolute
 
25112
 
Section 7.05    Waivers by Guarantors
 
25113
 
Section 7.06    Guarantors’ Rights of Subrogation, Contribution, etc
 
25114

-iii-



TABLE OF CONTENTS

 
Section 7.07    Subordination of Other Obligations
 
25114
 
Section 7.08    Continuing Guaranty
 
25114
 
Section 7.09    Authority of Guarantors or Borrower
 
25115
 
Section 7.10    Financial Condition of Borrower
 
25115
 
Section 7.11    Bankruptcy, etc
 
25115
 
Section 7.12    Discharge of Guaranty upon Sale of Guarantor
 
25115
 
 
 
 
ARTICLE VIII EVENTS OF DEFAULT
 
25116
 
 
 
 
 
Section 8.01    Events of Default
 
25116
 
Section 8.02    Curative Equity
 
25119
 
 
 
ARTICLE IX ADMINISTRATIVE AGENT
 
25120
 
 
 
 
 
Section 9.01    Appointment of Agents
 
25120
 
Section 9.02    Powers and Duties
 
25120
 
Section 9.03    General Immunity
 
25120
 
Section 9.04    Agents Entitled to Act as Lender
 
25121
 
Section 9.05    Lenders’ Representations, Warranties and Acknowledgment
 
25122
 
Section 9.06    Right to Indemnity
 
25122
 
Section 9.07    Successor Agent
 
25123
 
Section 9.08    Collateral Documents and Guaranty
 
25124
 
Section 9.09    Agency for Perfection
 
25125
 
Section 9.10    [Reserved]
 
25125
 
Section 9.11    Reports and Other Information; Confidentiality; Disclaimers
 
25125
 
 
 
 
 
ARTICLE X MISCELLANEOUS
 
25126
 
 
 
 
 
 
Section 10.01    Notices
 
25126
 
Section 10.02    Expenses
 
25127
 
Section 10.03    Indemnity
 
25128
 
Section 10.04    Setoff
 
25129
 
Section 10.05    Amendments and Waivers
 
25129
 
Section 10.06    Successors and Assigns; Participations
 
25131
 
Section 10.07    Independence of Covenants
 
25134
 
Section 10.08    Survival of Representations, Warranties, and Agreements
 
25134
 
Section 10.09    No Waiver; Remedies Cumulative
 
25134
 
Section 10.10    Marshalling; Payments Set Aside
 
25134
 
Section 10.11    Severability
 
25135
 
Section 10.12    Obligations Several; Independent Nature of Lenders’ Rights
 
25135
 
Section 10.13    Headings
 
25135
 
Section 10.14    APPLICABLE LAW
 
25135
 
Section 10.15    CONSENT TO JURISDICTION
 
25135
 
Section 10.16    WAIVER OF JURY TRIAL
 
25136
 
Section 10.17    Confidentiality
 
25136

-iv-



TABLE OF CONTENTS

 
Section 10.18    Usury Savings Clause
 
25137
 
Section 10.19    Counterparts
 
25138
 
Section 10.20    Effectiveness
 
25138
 
Section 10.21    Acknowledgement and Consent to Bail-In of EEA Financial Institutions
 
25138
 
Section 10.22    PATRIOT Act Notice
 
25138
 
Section 10.23    Consent to Intercreditor Agreement and Liberty Intercreditor Agreement 
 
25138
 
Section 10.24    Intercreditor Agreement and the Liberty Intercreditor Agreement Govern Governs
 
25139

-v-




APPENDICES:
A
Term Loan Commitments
 
B
Notice Addresses
 
 
SCHEDULES:
1.1
Third Party Franchisees 
 
4.1
Jurisdiction of Organization
 
4.2
Capital Stock and Ownership
 
4.12
Material Real Estate Assets
 
4.13
Environmental Matters
 
4.24    
Intellectual Property
 
4.25    
Inventory and Equipment
 
4.27
Insurance
 
4.28    
Franchise Agreements
 
4.30
Bank Accounts and Securities Accounts
 
5.1
Performance Information
 
5.16    
Certain Post Closing Matters
 
6.1     
Certain Indebtedness
 
6.2     
Certain Liens
 
6.7     
Certain Investments
 
6.12    
Certain Affiliate Transactions
 
6.17    
Credit Card Issuers and Credit Card Processors
 
7.1     
List of Names
 
 
EXHIBITS:
A‑1    
Funding Notice
 
A‑2    
Conversion/Continuation Notice
 
B     
Initial Perfection Certificate
 
C
Compliance Certificate
 
D      
Assignment Agreement
 
E-1
Certificate Regarding Non-Bank Status (For Non-US Lenders That Are Not Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)
 
E-2    
Certificate Regarding Non-Bank Status (For Non-US Lenders That Are Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)
 
F-1    
Closing Date Certificate
 
F-2    
Solvency Certificate
 
G      
Security Agreement
 
H      
Credit Card Notifications
 
I      
[Reserved] 
 
J-1
Tranche A-1 Term Note
 
J-2
Tranche A-2 Term Note
 
K      
Borrower Joinder Agreement








CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of February 14, 2020, by and among FRANCHISE GROUP INTERMEDIATE HOLDCO, LLC, a Delaware limited liability company (“Lead Borrower”), as a Borrower, FRANCHISE GROUP MERGER SUB AF, INC., a Delaware corporation (“Merger Sub”), as a Borrower (which, on the Closing Date, shall be merged with and into AMERICAN FREIGHT GROUP, INC., a Delaware corporation (“AFGI”), with AFGI surviving such merger as a Borrower), certain other Subsidiaries of Lead Borrower from time to time party hereto as Borrowers, FRANCHISE GROUP NEW HOLDCO, LLC, a Delaware limited liability company (“Global Parent”), as a Guarantor, certain Subsidiaries of Lead Borrower from time to time party hereto as Guarantors, the lenders identified on the signature pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender,” as that term is hereinafter further defined), GACP FINANCE CO., LLC, a Delaware limited liability company (“GACP”), as administrative agent for each of the Lenders (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent”), KAYNE SOLUTIONS FUND, L.P., a Delaware limited partnership (“Kayne”), as collateral agent for each of the Lenders (in such capacity, together with its successors and assigns in such capacity, “Collateral Agent”), and GACP II, L.P. and Kayne, as joint lead arrangers and joint book runners.
W I T N E S S E T H:
WHEREAS, capitalized terms used in these recitals shall have the respective meanings set forth for such terms in Section 1.01 hereof;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of December 28, 2019 (as amended from time to time in accordance therewith, the “Acquisition Agreement”), by and among AFGI, Franchise Group Newco Intermediate AF, LLC, a Delaware limited liability company (“AF Holdings”), Merger Sub and The Jordan Company, L.P., a Delaware limited partnership, as Representative, Merger Sub will merge with and into AFGI (the “Acquisition”), with AFGI surviving the Acquisition as an indirect Subsidiary of Lead Borrower;

WHEREAS, Lenders have agreed to extend a credit facility to Borrowers in an aggregate principal amount not exceeding $575,000,000, consisting of $575,000,000 in term loans, the proceeds of which will be used as described in Section 2.05.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION

Section 1.01    Definitions. As used in this Agreement, the following terms shall have the following definitions:
A Team” means A Team Sales, LLC, a Delaware limited liability company.
A Team Secured Note” means that certain Secured Promissory Note, dated October 23, 2019, between A Team and Franchise Group Newco S, LLC, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
ABL Agent” means (1) GACP Finance Co., LLC, in its capacity as agent on behalf of lenders or any successor agent under the ABL Credit Agreement or (2) the collateral agent or administrative agent equivalent, as applicable, under the agreements and other documents governing any refinancing of the Indebtedness under the ABL Credit Agreement, the ABL Loan Documents and the ABL Obligations which is permitted under this Agreement and under the Intercreditor Agreement.

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ABL Borrowing Base Certificate” means (1) the “Borrowing Base Certificate” as defined in the ABL Credit Agreement or (2) the equivalent term to “Borrowing Base Certificate”, if any, under the agreements and other documents governing any refinancing of the Indebtedness under the ABL Credit Agreement, the ABL Loan Documents and the ABL Obligations which is permitted under this Agreement and under the Intercreditor Agreement.
ABL Bridge Replacement Credit Agreement” has the meaning specified in the definition of “ABL Credit Agreement”.
ABL Bridge Replacement Credit Agreement Effective Date” means the first date upon which an ABL Bridge Replacement Credit Agreement is effective.
ABL Credit Agreement” means (1) the ABL Credit Agreement, dated as of February 14, 2020, by and among the Loan Parties, the Persons from time to time party thereto as lenders and the ABL Agent, as amended, restated, supplemented or otherwise modified from time to time; provided that any such amendment, restatement, supplement or modification shall be subject to the terms of the Intercreditor Agreement or (2) the credit agreement governing any refinancing of the Indebtedness under the ABL Credit Agreement, the ABL Loan Documents and the ABL Obligations which is permitted under this Agreement and under the Intercreditor Agreement (any such credit agreement under this clause (2), an “ABL Bridge Replacement Credit Agreement”).
ABL Excess Availability” means “Excess Availability” or the equivalent term, if any, as defined in the agreements and other documents governing any refinancing of the Indebtedness under the ABL Credit Agreement, the ABL Loan Documents and the ABL Obligations, which is permitted under this Agreement and under the Intercreditor Agreement.
ABL Lenders” means (1) the “Lenders” as defined in the ABL Credit Agreement or (2) the equivalent term to “Lenders”, if any, under the agreements and other documents governing any refinancing of the Indebtedness under the ABL Credit Agreement, the ABL Loan Documents and the ABL Obligations which is permitted under this Agreement and under the Intercreditor Agreement.
ABL Loan Documents” means (1) the “Loan Document” as defined in the ABL Credit Agreement or (2) the equivalent term to “Loan Document”, if any, under the agreements and other documents governing any refinancing of the Indebtedness under the ABL Credit Agreement, the ABL Loan Documents and the ABL Obligations which is permitted under this Agreement and under the Intercreditor Agreement.
ABL Maturity Date” means (1) “Maturity Date” as defined in the ABL Credit Agreement or (2) the equivalent term to “Maturity Date”, if any, under the agreements and other documents governing any refinancing of the Indebtedness under the ABL Credit Agreement, the ABL Loan Documents and the ABL Obligations which is permitted under this Agreement and under the Intercreditor Agreement.
ABL Obligations” means all Indebtedness and other Obligations (as defined in the ABL Credit Agreement) of the Loan Parties incurred or owing under the ABL Loan Documents, including all obligations in respect of the payment of principal, interest, fees, prepayment premiums and indemnification obligations, and any refinancing of such Indebtedness permitted under this Agreement and under the Intercreditor Agreement; provided that all ABL Obligations are subject to the Intercreditor Agreement.
Accounts” means all “accounts” (as defined in the UCC) of the Loan Parties (or, if referring to another Person, of such Person), including, without limitation, accounts, accounts receivable, monies due or to become due, and obligations in any form (whether arising in connection with contracts, contract rights, instruments, general intangibles, or chattel paper), in each case whether arising out of goods sold or services rendered or from any other transaction and whether or not earned by performance, now or hereafter in existence, and all documents of title or other documents representing any of the foregoing, and all collateral security and guaranties of any kind, now or hereafter in existence, given by any Person with respect to any of the foregoing.

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Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement, or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or any successor thereto or any agency with similar functions).
Acquisition” has the meaning specified in the recitals hereto.
Acquisition Agreement” has the meaning specified in the recitals hereto.
Adjusted LIBOR Rate” means for any Interest Rate Determination Date with respect to an Interest Period for a LIBOR Rate Loan, the greater of (a) the rate per annum obtained by dividing (and rounding upward to the next whole multiple of 1/100 of 1%) (i) (A) the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate appearing on Bloomberg L.P.’s service for ICE LIBO USD (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date or (B) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service which displays ICE LIBO USD (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date (the rate described in this clause (a)(i), the “LIBOR Rate”), by (ii) an amount equal to (A) one, minus (B) the Applicable Reserve Requirement, and (b) 1.50% per annum.
Administrative Agent” has the meaning specified in the preamble hereto.
Administrative Agent’s Account” means an account at a bank designated by Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to Administrative Agent under this Agreement and the other Loan Documents.
Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial, or otherwise), governmental investigation, or arbitration (whether or not purportedly on behalf of any Loan Party or any of its Subsidiaries (excluding the Excluded Entities)) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Actions) or other regulatory body or any mediator or arbitrator, whether pending or, to the knowledge of any Loan Party, threatened in writing against or affecting any Loan Party or any of its Subsidiaries (excluding the Excluded Entities) or any property of any Loan Party or any of its Subsidiaries (excluding the Excluded Entities).
AF Credit Agreement” means that certain Credit Agreement, dated as of October 31, 2014, among American Freight, Inc., American Freight Holdings, Inc., the lenders named therein and KeyBank National Association, as administrative agent and collateral agent, and the other Persons party thereto, as amended, restated, supplemented, or otherwise modified from time to time.
AF Holdings” has the meaning specified in the recitals hereto.
Affected Lender” has the meaning specified in Section 2.17(b).
Affected Loans” has the meaning specified in Section 2.17(b).

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Affiliate” means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with such Person. For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries, of the power to direct the management and policies of a Person, whether through the ownership of Capital Stock, by contract, or otherwise; provided, that for purposes of Section 6.12 of this Agreement: (a) any Person which owns directly or indirectly 30% or more of the Capital Stock having ordinary voting power for the election of directors or other members of the governing body of a Person or 30% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, (c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such Person and (d) each Permitted Holder and each of its employees, directors, officers and other Affiliates shall be deemed an Affiliate of the Loan Parties. Without limiting the foregoing, Ultimate Parent and any Subsidiary of Ultimate Parent that is not a Loan Party shall be considered Affiliates of the Loan Parties for purposes of this Agreement. Notwithstanding anything herein to the contrary, in no event shall any Agent or any parent company thereof be considered an “Affiliate” of any Loan Party.
AFGI” has the meaning specified in the preamble hereto.
Agent” means each of Administrative Agent and Collateral Agent.
Aggregate Amounts Due” has the meaning specified in Section 2.16.
Aggregate Payments” has the meaning specified in Section 7.02.
Agreement” means this Credit Agreement and any annexes, exhibits, and schedules attached hereto as it may be amended, supplemented, or otherwise modified from time to time.
Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the per annum rate publicly quoted from time to time by The Wall Street Journal as the “Prime Rate” in the United States (or, if The Wall Street Journal ceases quoting a prime rate of the type described, either (i) the per annum rate quoted as the base rate on such corporate loans in a different national publication as reasonably selected by Administrative Agent or (ii) the highest per annum rate of interest published by the Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected Interest Rates” as the bank prime loan rate or its equivalent), (b) the Federal Funds Effective Rate (but not less than zero) in effect on such day, plus 1/2 of 1.00%, (c) the Adjusted LIBOR Rate (taking into account the 1.50% floor therein) for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day), plus 1.00%, and (d) 2.50%. Any change in the Alternate Base Rate due to a change in such “Prime Rate”, the Federal Funds Effective Rate or the Adjusted LIBOR Rate shall be effective on the effective date of such change in the “Prime Rate”, the Federal Funds Effective Rate or the Adjusted LIBOR Rate, as the case may be.
Anti-corruption Laws” means the FCPA, and all other applicable laws concerning or relating to bribery, money laundering or corruption.
Applicable Margin” means (a) (x) with respect to Tranche A-1 Term Loans that are LIBOR Rate Loans, 8.00%, and (y) with respect to Tranche A-1 Term Loans that are Base Rate Loans, 7.00% and (b) (x) with respect to Tranche A-2 Term Loans that are LIBOR Rate Loans, 12.50%, and (y) with respect to Tranche A-2 Term Loans that are Base Rate Loans, 11.50%; provided that the Applicable Margin, in each case, shall be increased by 1.00% for all periods following the Closing Date up to but excluding the Liberty JoinderSecond Amendment Effective Date.
Applicable Prepayment Premium” has the meaning specified in Section 2.12(b).

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Applicable Reserve Requirement” means, at any time, for any LIBOR Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal, special, supplemental, emergency, or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors of the Federal Reserve System or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities which includes deposits by reference to which the applicable Adjusted LIBOR Rate or any other interest rate of a Loan is to be determined or (b) any category of extensions of credit or other assets which include LIBOR Rate Loans. A LIBOR Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions, or offsets that may be available from time to time to the applicable Lender. The rate of interest on LIBOR Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
Application Event” means the (a) occurrence of an Event of Default and (b) the election by the Required Lenders during the continuance of such Event of Default to require that payments and proceeds of Collateral be applied pursuant to Section 2.15(g).
Asset Sale” means a sale, lease, or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license, or other disposition to (other than to or with a Loan Party), or any exchange of property with, any Person, in one transaction or a series of transactions, of all or any part of any Loan Party’s or any of its Subsidiaries’ businesses, assets, or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any Loan Party (other than Global Parent to the extent the issuance of such Capital Stock does not result in a Change of Control), other than inventory (or other assets) sold, licensed in the ordinary course of business, or leased in the ordinary course of business. For purposes of clarification, “Asset Sale” shall include (a) the sale or other disposition for value of any contracts, (b) 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 or any of its Subsidiaries and (c) licenses of patents, trademarks, and other intellectual property rights granted by any Loan Party or any of its Subsidiaries.
Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.
Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, chief operating officer, secretary, president, or one of its vice presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer.
B. Riley” means the parent company of GACP.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Alternate Base Rate.

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Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Beneficiary” means each Agent and each Lender.
Board” means (a) with respect to any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to 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) with respect to any other Person, the board or committee of such Person serving a similar function.
Borrower Joinder Agreement” shall mean a joinder agreement in substantially the form of Exhibit K hereto and otherwise in form and substance acceptable to Agent.
Borrowers” shall mean, collectively, the following: (a) Lead Borrower, (b) each of the other Persons identified on the signature pages hereof as a “Borrower” and (c) any other Person that at any time after the Closing Date becomes a Borrower pursuant to the terms hereof, including, without limitation, Section 5.10(a) hereof and by execution of a Borrower Joinder Agreement; each sometimes being referred to herein individually as a “Borrower”.
Buddy Top Parent” means Franchise Group Intermediate B, LLC, a Delaware limited liability company.
Buddy’s Credit Agreement” means that certain Credit Agreement, dated as of July 10, 2019, among Buddy Top Parent, its direct and indirect subsidiaries as borrowers, the other parties party thereto and Kayne, as administrative agent, as amended, restated, supplemented, or otherwise modified from time to time.
Business Day” means (a) any day excluding Saturday, Sunday, and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (b) with respect to all notices, determinations, fundings, and payments in connection with the Adjusted LIBOR Rate or any LIBOR Rate Loans, the term “Business Day” shall mean any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person (a) as lessee that, in conformity with GAAP as in effect on the date hereof, is or should be accounted for as a capital lease on the balance sheet of that Person or (b) as lessee which is a transaction of a type commonly known as a “synthetic lease” (i.e., a transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income Tax purposes).
Capital Stock” means any and all shares, interests, participations, or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights, or options to purchase, or other arrangements or rights to acquire any of the foregoing.
Cash” means money, currency, or a credit balance in any demand or Deposit Account.

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Cash Equivalents” means, as at any date of determination, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States, the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date, (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A‑1 from S&P or at least P-1 from Moody’s, (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A‑1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000, and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $250,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.
Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other customary cash management arrangements.
Casualty Event” means any involuntary loss of title, any involuntary loss of, damage to, or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of any Loan Party or any of its Subsidiaries. “Casualty Event” shall include, but not be limited to, any taking of all or any part of any real estate of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any requirement of law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any Person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.
Certificate Regarding Non-Bank Status” means a certificate substantially in the form of Exhibit E.
Change of Control” means that:
(a)    after the Closing Date, any Person or two or more Persons acting in concert (other than Permitted Holders or Ultimate Parent, any subsidiary of Ultimate Parent or any successor entity thereto) shall have acquired beneficial ownership, directly or indirectly, of Capital Stock of Global Parent (or other securities convertible into such Capital Stock) representing 20% or more of the combined voting power of all Capital Stock of Global Parent,
(b)    during any period of 24 consecutive months commencing on or after the Closing Date, the occurrence of a change in the composition of the Board of Directors of Ultimate Parent such that a majority of the members of such Board of Directors are not Continuing Directors,
(c)    after the Closing Date, Global Parent fails to own and control, directly or indirectly, 100% of the Capital Stock (other than directors’ qualifying shares, issuances pursuant to any equity incentive plan or similar plan, the Equity Grant, or other nominal issuance in order to comply with local laws) of each other Loan Party (other than as permitted by Section 6.10 or Section 6.19),

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(d)    after the Closing Date, the Specified Holders fail to own and control, directly or indirectly, Capital Stock in Global Parent or Ultimate Parent, as applicable, in an aggregate amount equal to 80% or greater than the aggregate amount of Capital Stock of Global Parent and Ultimate Parent, as applicable, that is owned and controlled directly by the Specified Holders immediately following the Closing Date (in each case, on a fully-diluted basis (and taking into account all Capital Stock of Global Parent and Ultimate Parent that the Specified Holders may have the right to acquire pursuant to any option right); provided, that any exchange of Capital Stock of Global Parent held by the Specified Holders for Capital Stock of Ultimate Parent effectuated by the Specified Holders, Ultimate Parent or Global Parent after the Closing Date shall be disregarded for purposes of this clause (d), or
(e)    the occurrence of a Change of Management after the Closing Date.
Change of Management” means that Brian Kahn’s direct or indirect management responsibilities of Lead Borrower are materially diminished from those held by him as of the Closing Date, in each case, other than as a result of (a) death or (b) physical or mental incapacity.
Closing Date” means the date on which the initial Term Loans are made.
Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit F-1.
Collateral” means, collectively, all of the real, personal, and mixed property (including Capital Stock) and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person pursuant to the Collateral Documents as security for the Obligations.
Collateral Access Agreement” means a collateral access agreement in form and substance reasonably satisfactory to Collateral Agent.
Collateral Agent” has the meaning specified in the preamble hereto.
Collateral Coverage Test” has the meaning specified in Section 5.10.
Collateral Documents” means the Security Agreement, the Liberty Security Agreements, if any, the Mortgages, if any, the Collateral Access Agreements, if any, any Control Agreement, the Credit Card Notifications, and all other instruments, documents, and agreements delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal, or mixed property of such Loan Party as security for the Obligations, in each case, as such Collateral Documents may be amended or otherwise modified from time to time.
Commitment” means any Term Loan Commitment.
Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
Consolidated Amortization Expense” means, for any period, the amortization expense of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) for such period, determined on a consolidated basis in accordance with GAAP.
Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property and equipment or which should otherwise be capitalized” or similar items reflected in the consolidated statement of cash flows of the Loan Parties.

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Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) for such period based upon GAAP, excluding any paid-in-kind interest, and amortization of deferred financing costs.
Consolidated Depreciation Expense” means, for any period, the depreciation expense of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) for such period, determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA” means, for any period, Consolidated Net Income for such period, adjusted by (a) adding thereto, in each case only to the extent deducted in determining such Consolidated Net Income and without duplication:
(i)    Consolidated Interest Expense,
(ii)    Consolidated Amortization Expense,
(iii)    Consolidated Depreciation Expense,
(iv)    Consolidated Tax Expense and, without duplication, Permitted Tax Payments,
(v)    reasonable and documented costs and expenses incurred by the Borrower on or prior to 30 days after the Closing Date in connection with the Transactions,
(vi)    (A) the aggregate amount of all other non-cash charges, non-cash write-downs, non-cash expenses, non-cash losses, or non-cash items (including, without limitation, purchase accounting adjustments under ASC 805 or similar acquisition accounting under GAAP or similar provisions under GAAP) reducing Consolidated Net Income (including any non-cash expense relating to the vesting of warrants), (B) net non‑cash exchange, non-cash translation, or non-cash performance losses relating to foreign currency transactions and currency fluctuations, and (C) cash charges resulting from the application of ASC 805,
(vii)    charges, losses, expenses, and payments that are covered by indemnification, reimbursement, guaranty, or purchase price adjustment provisions in favor of Global Parent, the Lead Borrower or any of its Subsidiaries (other than the Excluded Entities) in any agreement entered into by such Person to the extent such expenses and payments have been reimbursed pursuant to the applicable indemnity, guaranty, or acquisition agreement (including, for the avoidance of doubt, with respect to the Acquisition and Permitted Acquisitions) in such period (or reasonably expected to be so paid or reimbursed within one year after the end of such period to the extent not accrued) or an earlier period if not added back to Consolidated EBITDA in such earlier period; provided, that (A) if such amount is not so reimbursed within such one-year period, such expenses or losses shall be subtracted in the subsequent calculation period and (B) if reimbursed or received in a subsequent period, such amount shall not be added back in calculating Consolidated EBITDA in such subsequent period,
(viii)    any non-cash extraordinary, non-cash unusual, or non-cash non-recurring expenses, losses, or charges incurred,
(ix)    any cash extraordinary, unusual, or non-recurring expenses, losses, or charges incurred,
(x)    any restructuring, business optimization, integration or similar charges,

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(xi)    pro forma “run rate” cost savings, operating expense reductions and other synergies and similar pro forma adjustments (in each case, net of amounts actually realized) related to acquisitions, dispositions, integrations, and other specified transactions, or related to restructuring initiatives, cost savings initiatives, business optimization initiatives and other initiatives that are reasonably identifiable and projected by the Lead Borrower in good faith to result from actions that have either been taken or with respect to which substantial steps have been taken and, in any event, will be realized within eighteen (18) months of, the date of consummation of such acquisition, disposition or other specified transaction or the initiation of such restructuring initiative, cost savings initiative or other initiatives, in each case, that are factually supportable (in the good faith determination of the Lead Borrower and certified by an Authorized Officer of the Lead Borrower), net of amounts actually realized from such actions during such test period (collectively, “Cost Savings”),
(xii)    the unamortized fees, costs, and expenses paid in cash in connection with the repayment of Indebtedness to persons that are not Affiliates of any Loan Party,
(xiii)    letter of credit fees,
(xiv)    any net loss included in Consolidated Net Income attributable to non-controlling interests in any non-Wholly Owned Subsidiary, and
(xv)    for the first four Fiscal Quarters after the Closing Date, other adjustments identified or set forth in the model delivered to the Agents on February 13, 2020; and (b)    adding thereto all dividends paid in cash during such period by any non-Loan Party Subsidiary of a Loan Party, Joint Venture or any Excluded Entity directly or indirectly to any Loan Party; and (c)  subtracting therefrom, in each case only to the extent (and in the same proportion) added in determining such Consolidated Net Income and, without duplication, the aggregate amount of (i) all non-cash items increasing Consolidated Net Income for such period (other than the accrual of revenue or recording of receivables in the ordinary course of business), (ii) any extraordinary, unusual, or non-recurring gains increasing Consolidated Net Income for such period, (iii) the amount of any minority interest net income attributable to non-controlling interests in any non-Wholly Owned Subsidiary, (iv) the aggregate amount of Restricted Junior Payments made in cash and permitted by Section 6.05(a)(ii)(x) during such period, and (v) the amount of any Tax credits realized during such period.
Notwithstanding anything to the contrary, it is agreed, that for any period that includes the fiscal quarter ended on September 30, 2019, Consolidated EBITDA shall be deemed to be $21,149,000, as adjusted on a pro forma basis. For the purposes of calculating Consolidated EBITDA for any period, if at any time during such period (and after the Closing Date), any Loan Party shall have consummated (a) an acquisition permitted hereunder or (b) a material disposition permitted hereunder (including the termination or discontinuance of activities constituting the disposed of business) of business entities, properties, or assets, in each case, constituting one or more divisions or lines of business of any business entity, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if any such acquisition or disposition occurred on the first day of such period. For the avoidance of doubt, Consolidated EBITDA shall not be calculated on a cash basis.
Notwithstanding anything to the contrary, the aggregate amount of addbacks made pursuant to clauses (ix), (x) and (xi) of clause (a) above shall not exceed 10% of Consolidated EBITDA (calculated prior to giving effect to any such addbacks or pro forma adjustments) for such four fiscal quarter period.

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Consolidated Excess Cash Flow” means, for any period, Consolidated EBITDA for such period, minus, without duplication:
(a)    Consolidated Cash Interest Expense and other payments of Indebtedness (including, without limitation, related fees and expenses), to the extent paid in cash and to the extent such payments are permitted hereunder (but excluding any mandatory cash prepayments with respect to the Loans under this Agreement) to the extent made from Internally Generated Cash); provided, that, in each case, payments of revolving Indebtedness shall not be deducted from Consolidated Excess Cash Flow pursuant to this clause (a) unless accompanied by a permanent reduction in the relevant commitment,
(b)    Consolidated Capital Expenditures made from Internally Generated Cash that are paid in cash (excluding Consolidated Capital Expenditures made in such period that were included in the calculation of Consolidated Excess Cash Flow in a prior period and net of any (i) Net Proceeds from Asset Sales to the extent reinvested in accordance with Section 2.13(a), (ii) Net Proceeds to the extent reinvested in accordance with Section 2.13(b), and (iii) any proceeds of related financings with respect to such expenditures),
(c)    the aggregate amount of Consolidated Tax Expense (including, but without duplication, any direct or indirect distributions for the payment of such Consolidated Tax Expense) paid or payable with respect to such period and, if payable, for which reserves have been established to the extent required under GAAP,
(d)    the aggregate amount of cash items added back to Consolidated Net Income in the calculation of Consolidated EBITDA for such period to the extent paid with Internally Generated Cash by Global Parent, the Lead Borrower or any of its Subsidiaries (other than the Excluded Entities) during such period,
(e)    the aggregate amount of Restricted Junior Payments and other payments made in cash permitted by Sections 6.05(a) (to the extent not deducted in calculating Consolidated Net Income pursuant to the definition thereof and without duplication of clause (c) above),
(f)    to the extent added to Consolidated Net Income pursuant to clause (vii) of the definition of Consolidated EBITDA, such amounts with respect to which no cash payment to any Loan Party was received during such period; provided, that any such cash payment subsequently received shall be included in the calculation of Consolidated Excess Cash Flow for the subsequent period when received, and
(g)     solely for the purposes of Section 6.05(c), the aggregate amount of Cost Savings added back to Consolidated EBITDA in the calculation of Consolidated EBITDA for such period; provided, that any amount deducted pursuant to any of the foregoing clauses that will be paid after the close of such period shall not be deducted again in a subsequent period; plus, without duplication:
(i)    cash items of income during such period not included in calculating Consolidated EBITDA, including, without limitation, proceeds from Asset Sales to the extent not reinvested in accordance with Section 2.13(a),
(ii)    the aggregate amount of non-cash items deducted from Consolidated Net Income in the calculation of Consolidated EBITDA for such period, and
(iii)    any cash payment that was actually received by any Loan Party during such period with respect to which a deduction was taken pursuant to clause (f) above during the previous period.
Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the amounts determined for Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) on a consolidated basis equal to (a) Consolidated Cash Interest Expense, plus (b) scheduled payments of principal on Consolidated Total Debt.

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Consolidated Interest Expense” means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of the Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) on a consolidated basis with respect to all outstanding Consolidated Total Debt, including all commissions, discounts, and other fees and charges owed with respect to letters of credit, but excluding, however, any amounts referred to in Section 2.10 payable on or before the Closing Date.
Consolidated Liquidity” means, for any period, an amount determined on a consolidated basis, equal to the aggregate sum of Qualified Cash of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) plus, if applicable, ABL Excess Availability.
Consolidated Net Income” means, for any period, (a) the net income (or loss) of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (b) the sum of (i) the income (or loss) of any Person (other than Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities)) in which any other Person (other than Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities)) has a joint interest, plus (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) or is merged into or consolidated with any Subsidiary of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) or that Person’s assets are acquired by any Subsidiary of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities), plus (iii) the income of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) to the extent that the declaration or payment of dividends or similar distributions by Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities), as applicable, plus (iv) any gains or losses attributable to Asset Sales or returned surplus assets of any Pension Plan, plus (v) (to the extent not included in clauses (b)(i) through (iv) above) any net extraordinary gains or net extraordinary losses.
Consolidated Tax Expense” means, for any period, the Tax expense (including federal, state, local, foreign, franchise, excise, and foreign withholding Taxes) of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities), including any penalties and interest relating to any Tax examinations for such period, determined on a consolidated basis in accordance with GAAP.
Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Global Parent, the Lead Borrower and its Subsidiaries (other than the Excluded Entities) determined on a consolidated basis in accordance with GAAP, less, solely for purposes of the Total Leverage Ratio, the lesser of (x) aggregate amount of Qualified Cash and (y) $25,000,000.
Continuing Director” means (1) any member of the Board of Directors of Ultimate Parent who was a director (or comparable manager) of Ultimate Parent on the date hereof and (2) any individual who becomes a member of the Board of Directors of Ultimate Parent after the date hereof if such individual was approved, appointed, or nominated for election to the Board of Directors of Ultimate Parent by either a majority of the Permitted Holders or a majority of the Continuing Directors. 
Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement, or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Collateral Agent, executed and delivered by Collateral Agent, ABL Agent (if party thereto), the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account) and any of the Loan Parties.

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Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A‑2.
Cost Savings” has the meaning specified in the definition of “Consolidated EBITDA”.
“COVID-19 Pandemic” means the global spread of the coronavirus illness, which was declared to be a pandemic by the World Health Organization on March 11, 2020.
Credit Card Issuer” shall mean any Person (other than a Loan Party) who issues or whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc., and Novus Services, Inc. and other issuers approved by Administrative Agent.
Credit Card Notification” has the meaning provided in Section 6.17(d).
Credit Card Processor” shall mean any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any Loan Party’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.
Credit Extension” means the making of a Loan.
Curative Equity” means equity investments (other than in respect of Disqualified Capital Stock) made by Permitted Holders, any Parent Company, any Excluded Entities or other holders of the Capital Stock of Ultimate Parent to Lead Borrower (whether directly or through one or more intermediate Persons) in immediately available funds.
Cure Quarter” has the meaning specified in Section 8.02(f).
Debtor Relief Law” means the Bankruptcy Code 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 or other applicable jurisdiction from time to time in effect.
Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans of such Defaulting Lender.

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Default Period” means, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default, or violation of Section 9.05(c), and ending on the earliest of the following dates: (a) the date on which all Commitments are cancelled or terminated, and/or the Obligations are declared or become immediately due and payable, (b) the date on which (i) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non pro rata application of any voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.11 or Section 2.13 or by a combination thereof), and (ii) such Defaulting Lender shall have delivered to Lead Borrower and Administrative Agent a written reaffirmation of its intention to honor its obligations hereunder with respect to its Commitments, (c) with respect to a Funding Default, the date on which Lead Borrower, Administrative Agent, and Required Lenders waive all Funding Defaults of such Defaulting Lender in writing, and (d) with respect to violation of Section 9.05(c), the date on which Administrative Agent shall have waived all violations of Section 9.05(c) by such Defaulting Lender in writing.
Default Rate” means any interest payable pursuant to Section 2.09.
Defaulted Loan” has the meaning specified in Section 2.21.
Defaulting Lender” has the meaning specified in Section 2.21.
Deposit Account” means a demand, time, savings, passbook, or like account with a bank, savings and loan association, credit union, or like organization, other than an account evidenced by a negotiable certificate of deposit.
Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), 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 that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is 180 days after the Maturity Date. Any Capital Stock in any Person that is issued to any director, officer, or other employee shall not constitute a Disqualified Capital Stock solely because it may be required to be repurchased by such Person or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death, or disability.
Disqualified Institutions” means (a) any person that has been separately identified in writing by Ultimate Parent to Administrative Agent on or prior to the Closing Date, (b) those persons who are competitors of Ultimate Parent and its and their subsidiaries that are separately identified in writing by Ultimate Parent, Global Parent or the Lead Borrower to Administrative Agent from time to time, and (c) in the case of each of clauses (a) and (b), any of their respective Affiliates (which, for the avoidance of doubt, shall not include any bona fide debt investment funds that are Affiliates of the persons referenced in clause (b) above, unless separately identified by Ultimate Parent, Global Parent or the Lead Borrower pursuant to clause (a) above) that are either (i) identified in writing by Ultimate Parent, Global Parent or the Lead Borrower from time to time or (ii) readily identifiable on the basis of such Affiliate’s name; provided that no updates to the list of Disqualified Institutions shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation interest in respect of the Loans from continuing to hold or vote such previously acquired assignments and participations on the terms set forth herein for Lenders that are not Disqualified Institutions (it being understood and agreed that such prohibitions with respect to Disqualified Institutions shall apply to any potential future assignments or participations to any such parties).

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Dividend Fixed Charge Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of:
(i) (w) (A) Consolidated EBITDA for the Fiscal Quarter period then ending plus (B) net cash received from A Team and its Subsidiaries and utilized to repay or prepay term loan Indebtedness or permanently reduce revolving Indebtedness during such Fiscal Quarter period ending on such date, minus (x) the sum of (A) Consolidated Capital Expenditures for such Fiscal Quarter period then ending, plus (B) the aggregate amount of federal, state, local and foreign income Taxes and Permitted Tax Payments paid in cash during the Fiscal Quarter period then ending (net of cash refunds of such Taxes received during such Fiscal Quarter period); provided that in no event shall the amounts calculated under this clause (B) be less than zero, plus (C) the aggregate amount of Restricted Junior Payments paid in cash during such Fiscal Quarter period then ending, plus (D) the aggregate amount of Cost Savings added back to Consolidated EBITDA in the calculation of Consolidated EBITDA for such period; to
(ii) Consolidated Fixed Charges for the Fiscal Quarter period then ending.
Dividing Person” has the meaning assigned to it in the definition of “Division.”
Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
Dollars” and the sign “$” mean the lawful money of the United States of America.
ECF Payment Amount” has the meaning specified in Section 2.13(e).
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means (a) any Lender, any Affiliate of any Lender, and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), and (b) any commercial bank, insurance company, investment or mutual fund, or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans as one of its businesses, and (c) any other Person (other than a natural Person) approved by Lead Borrower (so long as no Specified Event of Default has occurred and is continuing) and Administrative Agent (each such consent not to be unreasonably withheld or delayed); provided, that (i) no approval of Lead Borrower shall be required during the continuance of a Specified Event of Default, (ii) no approval of Lead Borrower shall be required for Disqualified Institutions during the continuance of a Specified Event of Default, and (iii) to the extent the consent of Lead Borrower is required for any assignment, such consent shall be deemed to have been given if Lead Borrower has not responded

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within ten (10) Business Days of a written request for such consent; provided further, that (x) neither (A) Lead Borrower nor any Affiliate of Lead Borrower nor (B) the Permitted Holders nor any Affiliate of the Permitted Holders shall, in any event, be an Eligible Assignee, (y) no Person owning or controlling any trade debt or Indebtedness of any Loan Party (other than the Obligations) or any Capital Stock of any Loan Party shall, in any event, be an Eligible Assignee and (z) B. Riley and its affiliates (other than GACP and any of GACP’s related funds) shall not, in any event, be an Eligible Assignee.
Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained, or contributed to, or required to be contributed, by any Loan Party or any of its ERISA Affiliates.
Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses any Loan Party or any of its Subsidiaries (excluding the Excluded Entities), or any of their respective predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries (excluding the Excluded Entities), or any of their respective predecessors in interest.
Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree, or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries (excluding the Excluded Entities), relating to protection of the environment, protection of employee health (from exposure to Hazardous Materials), or Hazardous Materials, in each case as amended from time to time.
Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.
Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.
Equipment” has the meaning ascribed to such term in the Security Agreement.
“Equity Grant” means Capital Stock issued within 365 days of the Second Amendment Effective Date by Liberty/Revolution Top Parent to Brent Turner; provided that no more than 5% of the Capital Stock issued by Liberty/Revolution Top Parent as of the Second Amendment Effective Date may be so issued.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member, (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member, and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (a) above, or any trade or business described in clause (b) above is a member. Any former ERISA Affiliate of Global Parent or any of its Subsidiaries (excluding the Excluded Entities) shall continue to be considered an ERISA Affiliate of Global Parent or any such Subsidiary (excluding the Excluded Entities) within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Global Parent or such Subsidiary and with respect to liabilities

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arising after such period for which Global Parent or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
ERISA Event” means: (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty day notice to the PBGC has been waived by regulation); (b)the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code or Section 302 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code), the failure to make by its due date a required installment under Section 412(m) of the Internal Revenue Code with respect to any Pension Plan, or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective ERISA Affiliates of notice from any Multiemployer Plan (1) imposing withdrawal liability, (2) that such Multiemployer Plan is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, (3) that such Multiemployer Plan is in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or (4) that such Multiemployer Plan intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the occurrence of an act or omission which could give rise to the imposition on Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective ERISA Affiliates of fines, penalties, Taxes, or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i), or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (i) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (j) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code, (k) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to Section 303(k) of ERISA with respect to any Pension Plan, (l) the existence with respect to any funded Employee Benefit Plan sponsored by Global Parent, any of its Subsidiaries (excluding the Excluded Entities), or any of their respective ERISA Affiliates of a non-exempt “Prohibited Transaction” (within the meaning of Section 406 of ERISA or Section 4975(c) of the Code), (m) the filing, pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to any Pension Plan, (n) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA).
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Event of Default” means each of the conditions or events set forth in Section 8.01.
Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

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Excluded Accounts” means Deposit Accounts, Securities Accounts and Commodity Accounts (1) specially and exclusively used for payroll, payroll Taxes, accrued and unpaid employee compensation payments and other employee wage and benefit payments to or for any Grantor’s employees and (including salaries, wages, benefits and expense reimbursements, 401(k) and other retirement plans and employee benefits, including rabbi trusts for deferred compensation and health care benefits), (2) that are zero balance accounts or other accounts (including, for the avoidance of doubt, local operating accounts of individual retail locations) that automatically sweep balances on an at least daily basis (other than days that are not business days for the applicable bank) (or, solely with respect to AF Holdings and its Subsidiaries, weekly) to a concentration account that is subject to a Control Agreement (subject to the timing requirements set forth in Section 6.17), (3) that (x) individually have a daily balance of not more than $100,000 and (y) together with all other Deposit Accounts, Securities Accounts and Commodity Accounts constituting Excluded Accounts under this clause (3), have a daily balance of not more than $2,500,000 in the aggregate for all such Deposit Accounts, Securities Accounts or Commodity Accounts and (4) consisting solely of Cash or Cash Equivalents securing Permitted Indebtedness (other than the Obligations) to the extent such security constitutes Permitted Liens (including, for avoidance of doubt, any account used solely in connection with cash collateralizing the Workers Comp L/C to the extent not in violation of clause (o) of the definition of “Permitted Liens”), and (5) used solely for withholding and trust accounts, escrow and any other fiduciary accounts, and (6) subject to compliance with Section 6.17(b), Local Deposit Accounts.
Excluded Entities” means (a) Revolution Holdings and its direct and indirect subsidiaries, and (b) Vitamin Holdings and its direct and indirect subsidiaries and (c) Liberty Holdings and its direct and indirect subsidiaries until the Liberty Joinder Date; provided that (x) with respect to clausesclause (b) and (c), to the extent not prohibited by law, regulation or the terms of such Person’s third party Indebtedness, each such Person and its respective direct and indirect subsidiaries shall immediately, and without further action by any Person, no longer constitute “Excluded Entities” and (y) in the case of clause (c), after the Liberty Joinder Date, Liberty Holdings and its direct and indirect subsidiaries shall immediately, and without further action by any Person, no longer constitute “Excluded Entities”.
Excluded Subsidiary” means any Subsidiary (a) that is prohibited, but only so long as such Subsidiary would be prohibited, by applicable law, rule, or regulation from providing a guaranty of the Obligations or granting a Lien on its assets to secure the Obligations or that would require governmental (including regulatory) consent, approval, license or authorization to provide such a guaranty or grant such a Lien, unless such consent, approval, license or authorization has been received (it being understood that the Loan Parties shall not be obligated to seek any such consent, approval, license or authorization); provided that the exclusion in this clause (a) shall in no way be construed to (A) apply to the extent that any described prohibition is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the Code or other applicable law, or (B) limit, impair, or otherwise affect any of the Collateral Agent’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (1) monies due or to become due under or in connection with the Capital Stock of such Excluded Subsidiary, or (2) any proceeds from the sale, license, lease, or other dispositions of the Capital Stock of such Excluded Subsidiary; (b) to the extent the Agents and the Borrower mutually determine that the cost and/or burden of obtaining a guaranty of the Obligations and/or a grant of a Lien on its assets to secure the Obligations by such Subsidiary outweighs the benefit to the Lenders, (c) that is, or if it were a Loan Party, would be, an “investment company” under the Investment Company Act of 1940, (d) that is a not-for-profit entity with a charitable purpose, or (e) the Excluded Entities, and (f) that is a direct or indirect Subsidiary of an entity described in clause (a), (b), (c) or (d) above. For the avoidance of doubt, none of thethe only Excluded Subsidiaries that are Loan Parties as of the Closing Date shall be an Excluded Subsidiary as of the Closing Dateas of the Second Amendment Effective Date are the Excluded Entities.
Excluded Taxes” has the meaning specified in Section 2.19(a).
Existing Businesses” means each of the businesses owned or operated, directly or indirectly, as of the Closing Date by Global Parent and its Subsidiaries.
Existing Indebtedness” means Indebtedness and other obligations outstanding under each of (i) the Buddy’s Credit Agreement, (ii) the Sears Credit Agreement and (iii) the AF Credit Agreement.

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Extraordinary Receipts” means any cash received by Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities) not in the ordinary course of business (and not consisting of proceeds described in Section 2.13(a) or (b) hereof), including, without limitation, (a) foreign, United States, state, or local Tax refunds, (b) pension plan reversions, (c) judgments, proceeds of settlements, or other consideration of any kind in connection with any cause of action, (d) [reserved], (e) indemnity payments, and (f) any purchase price adjustment received in connection with any purchase agreement, excluding for the avoidance of doubt proceeds from (i) the issuance of Capital Stock of Global Parent or the issuance of Capital Stock of any of its Subsidiaries (so long as such issuance is to its direct parent company that owns 100% of the Capital Stock of such Subsidiary prior to such issuance) and (ii) the issuance of Indebtedness (it being understood and agreed that the issuance of Indebtedness not permitted to be incurred pursuant to Section 6.01 shall remain subject to Section 2.13(d)).
Fair Share” has the meaning specified in Section 7.02.
Fair Share Contribution Amount” has the meaning specified in Section 7.02.
FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, in effect as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.
Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, that if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day.
Fee Letter” means the fee letter, dated as of the Closing Date, by and between Ultimate Parent and GACP, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief operating officer, chief financial officer, chief executive officer or other officer with similar responsibilities of the Lead Borrower that such financial statements fairly present, in all material respects, the financial condition of the Loan Parties (or Global Parent and its Subsidiaries, or Ultimate Parent and its Subsidiaries, as the case may be, in each case subject to Section 5.14) as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.
Financial Plan” has the meaning specified in Section 5.01(i).
First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.
Fiscal Quarter” means a fiscal quarter of any Fiscal Year, which quarters shall generally end on (a) with respect to the first fiscal quarter of any Fiscal Year, the Saturday of the thirteenth week of such Fiscal Year, (b) with respect to the second fiscal quarter of any Fiscal Year, the Saturday of the twenty-sixth week of such Fiscal Year, (c) with respect to the third fiscal quarter of any Fiscal Year, the Saturday of the thirty-ninth week of such Fiscal Year, and (d) with respect to the last fiscal quarter of any Fiscal Year, the last day of such Fiscal Year, as such Fiscal Quarters may be amended in accordance with the provisions of Section 6.16 hereof.

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Fiscal Year” means the fiscal year of the Lead Borrower ending on the Saturday closest to December 31 of each calendar year (or such other date as may be permitted by Section 6.16).
Fixed Charge Coverage Ratio” means the ratio as of the last day of:
(a)    the first full Fiscal Quarter ending after the Closing Date of:
(i) (w) (A) Consolidated EBITDA for the four-Fiscal Quarter period then ending plus (B) net cash received from A Team and its Subsidiaries and utilized repay or prepay Indebtedness for the four Fiscal Quarter period then ending, minus (x)    the sum of (A) Consolidated Capital Expenditures for such Fiscal Quarter multiplied by four (4), plus (B) the aggregate amount of federal, state, local and foreign income Taxes and all Permitted Tax Payments paid in cash during such Fiscal Quarter (net of cash refunds of such Taxes received during such Fiscal Quarter) multiplied by four (4); provided that in no event shall the amounts calculated under this clause (B) be less than zero, plus (C) the aggregate amount of Restricted Junior Payments paid in cash during such Fiscal Quarter multiplied by four (4) to
(ii) Consolidated Fixed Charges for such Fiscal Quarter multiplied by four (4),
(b) the second full Fiscal Quarter ending after the Closing Date of:
(i) (w) (A) Consolidated EBITDA for the four Fiscal Quarter period then ending plus (B) net cash received from A Team and its Subsidiaries and utilized repay or prepay Indebtedness for the four Fiscal Quarter period then ending, minus (x) the sum of (A) Consolidated Capital Expenditures for the two-Fiscal Quarter period ending on such date multiplied by two (2), plus (B) the aggregate amount of federal, state, local and foreign income Taxes and all Permitted Tax Payments paid in cash during the two-Fiscal Quarter period ending on such date (net of cash refunds of such Taxes received during such two-Fiscal Quarter period) multiplied by two (2); provided that in no event shall the amounts calculated under this clause (B) be less than zero, plus (C) the aggregate amount of Restricted Junior Payments paid in cash during such two-Fiscal Quarter period ending on such date multiplied by two (2) to
(ii) Consolidated Fixed Charges for such Fiscal Quarter multiplied by two (2),
(c) the third full Fiscal Quarter ending after the Closing Date of:
(i) (w) (A) Consolidated EBITDA for the four Fiscal Quarter period then ending plus (B) net cash received from A Team and its Subsidiaries and utilized repay or prepay Indebtedness for the four Fiscal Quarter period then ending, minus (x) the sum of (A) Consolidated Capital Expenditures for the three-Fiscal Quarter period ending on such date multiplied by four thirds (4/3), plus (B) the aggregate amount of federal, state, local and foreign income Taxes and Permitted Tax Payments paid in cash during the three-Fiscal Quarter period ending on such date (net of cash refunds of such Taxes received during such three-Fiscal Quarter period) multiplied by four thirds (4/3); provided that in no event shall the amounts calculated under this clause (B) be less than zero, plus (C) the aggregate amount of Restricted Junior Payments paid in cash during such three-Fiscal Quarter period ending on such date multiplied by four thirds (4/3) to
(ii) Consolidated Fixed Charges for such Fiscal Quarter multiplied by four thirds (4/3), and

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(d) any other Fiscal Quarter of:
(i) (w) (A) Consolidated EBITDA for the four Fiscal Quarter period then ending plus (B) net cash received from A Team and its Subsidiaries and utilized repay or prepay Indebtedness for the four Fiscal Quarter period then ending, minus (x) the sum of (A) Consolidated Capital Expenditures for such four Fiscal Quarter period then ending, plus (B) the aggregate amount of federal, state, local and foreign income Taxes and Permitted Tax Payments paid in cash during the four Fiscal Quarter period then ending (net of cash refunds of such Taxes received during such four-Fiscal Quarter period); provided that in no event shall the amounts calculated under this clause (B) be less than zero, plus (C) the aggregate amount of Restricted Junior Payments paid in cash during such four-Fiscal Quarter period then ending to
(ii) Consolidated Fixed Charges for the four Fiscal Quarter period then ending.
Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
Flow of Funds Agreement” means that certain Letter of Direction, dated as of the Closing Date, duly executed by each Loan Party and any other parties thereto, in form and substance reasonably satisfactory to the Administrative Agent, in connection with the disbursement of Loan proceeds in accordance with Section 2.05.
Franchise Agreement” means a franchising agreement between any Loan Party or any Subsidiary (excluding the Excluded Entities) thereof, as franchisor, and any other Person, as franchisee, pertaining to the establishment and operation of a business with operations comparable to the operations of the Lead Borrower and its Subsidiaries (excluding the Excluded Entities).
Franchise Disclosure Documents” means any uniform franchise offering circulars and franchise disclosure documents used by (and, to the extent required, filed by) any Loan Party or Subsidiary (excluding the Excluded Entities) to comply with any applicable law, rule, regulation or order of any Governmental Authority.
Franchise Laws” means all applicable laws, rules, regulations, orders, binding guidance or other requirements of the United States Federal Trade Commission or any other Governmental Authority relating to the relationship between franchisor and franchisees or to the offer, sale, termination, non-renewal or transfer of a franchise.
Funding Default” has the meaning specified in Section 2.21.
Funding Notice” means a notice substantially in the form of Exhibit A‑1.
GAAP” means, subject to the limitations on the application thereof set forth in Section 1.02, United States generally accepted accounting principles in effect as of the date of determination thereof.
GACP” has the meaning ascribed thereto in the preamble to this Agreement.
Global Parent” has the meaning ascribed thereto in the preamble to this Agreement.
Governmental Authority” means any federal, state, municipal, national, or other government, governmental department, commission, board, bureau, court, agency, or instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.
Governmental Authorization” means any permit, license, authorization, plan, directive, consent order, or consent decree of or from any Governmental Authority.

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Grantor” has the meaning specified in the Security Agreement.
Guaranteed Obligations” has the meaning specified in Section 7.01.
Guarantor” means (a) each Borrower (other than with respect to its own Obligations), (b) Global Parent, (c) each Guarantor Subsidiary, and (d) each other Person which guarantees, pursuant to Article VII or otherwise, all or any part of the Obligations.
Guarantor Subsidiary” means each Subsidiary of Lead Borrower (other than the Excluded Entities and the Excluded Subsidiaries) that is a Guarantor.
Guaranty” means (a) the guaranty of each Guarantor set forth in Article VII, and (b) each other guaranty, in form and substance satisfactory to each Agent, made by any other Guarantor for the benefit of the Secured Parties guaranteeing all or part of the Obligations.
Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity,” (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.
Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently 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.
Historical Financial Statements” means (a) all financial statements required to be delivered on or after December 28, 2019 and prior to the Closing Date under the Sears Credit Agreement and (b) all financial statements required to be delivered on or after December 28, 2019 and prior to the Closing Date under the Buddy’s Credit Agreement, (c) the unaudited consolidated balance sheets and related statements of income, changes in equity, and cash flows of AFGI, in each case, for each fiscal quarter ending after December 31, 2019 and ended at least 45 days prior to the Closing Date; and (d) an unaudited pro forma consolidated balance sheet and income statement of the Loan Parties as of the date of the most recent consolidated balance sheet delivered pursuant to the preceding clause (c).
Increased Cost Lender” has the meaning specified in Section 2.22.
Indebtedness” means, as applied to any Person, without duplication, (a) all indebtedness for borrowed money, (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (c) all obligations of such Person evidenced by notes, bonds, or similar instruments or upon which interest payments are customarily paid and all obligations in respect of notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money, (d) any obligation owed for all or any part of the deferred purchase price of property or services, including any deferred payment obligations in connection with an acquisition to the extent such deferred payment obligations are fixed and non-contingent (excluding any such obligations incurred under ERISA and excluding trade payables incurred in the ordinary course of business and repayable in accordance with customary trade terms), (e) all obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (f) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is non-recourse to the credit of that Person, (g) the face amount of any letter of credit or letter of guaranty issued, bankers’

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acceptances facilities, surety bonds, and similar credit transactions issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings, (h) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse, or sale with recourse by such Person of the obligation of another, (i) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof, (j) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (i) to purchase, repurchase, or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions, or otherwise) or (ii) to maintain the solvency or any balance sheet item, level of income, or financial condition of another if, in the case of any agreement described under subclauses (i) or (ii) of this clause (j), the primary purpose or intent thereof is as described in clause (i) above, (k) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or joint venturer, unless such Indebtedness is expressly non-recourse to such Person.
Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties and claims (including Environmental Liabilities), and reasonable and documented out-of-pocket costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation, or other response action necessary to remove, remediate, clean up, or abate any Hazardous Materials), expenses, and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and reasonable and documented out-of-pocket disbursements of counsel for Indemnitees in connection with any investigative, administrative, or judicial proceeding commenced or threatened in writing by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any reasonable and documented fees or expenses incurred by Indemnitees in enforcing this indemnity (limited, in the case of legal expenses, to the reasonable, documented and invoiced fees and reasonable, documented and invoiced out-of-pocket disbursements of one primary counsel (to be retained by the Administrative Agent) to all Indemnitees, taken as a whole, and, if reasonably necessary, one local counsel in any relevant material jurisdiction (which may include a single firm of counsel acting in multiple jurisdictions) and, solely in the case of an actual or perceived conflict of interest where any Indemnitee affected by such conflict informs Lead Borrower of such conflict, in each case, of a single additional firm of counsel in each relevant material jurisdiction for all similarly situated affected Indemnitees)), whether direct, indirect, or consequential and whether based on any federal, state, or foreign laws, statutes, rules, or regulations (including securities and commercial laws, statutes, rules, or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (a) this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)), (b) the statements contained in any commitment letter delivered by any Lender to Ultimate Parent with respect to the transactions contemplated by this Agreement, or (c) any Environmental Liabilities or any Hazardous Materials relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of any Loan Party or any of its Subsidiaries.
Indemnified Taxes” has the meaning specified in Section 2.19(a).
Indemnitee” has the meaning specified in Section 10.03(a).
Indemnitee Agent Party” has the meaning specified in Section 9.06.
“Initial Perfection Certificate” has the meaning assigned to such term in the definition of Perfection Certificate.

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Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.
Installment” has the meaning specified in Section 2.11.
Installment Date” has the meaning specified in Section 2.11.
Intellectual Property” has the meaning ascribed to such term in the Security Agreement.
Intercompany Subordination Agreement” means that certain Intercompany Subordination Agreement, dated as of the Closing Date, made by the Loan Parties in favor of Collateral Agent, for the benefit of the Secured Parties, in form and substance satisfactory to Collateral Agent.
Intercreditor Agreement” means the intercreditor agreement dated as of the date hereof among the Administrative Agent, the Collateral Agent and the ABL Agent and acknowledged by the Loan Parties, as the same may be amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time in accordance with the provisions hereof and thereof.
Interest Payment Date” means with respect to (a) any Base Rate Loan, (i) the first day of each fiscal quarter, commencing on the first such date to occur after the Closing Date, and (ii) the final maturity date of such Loan, and (b) any LIBOR Rate Loan, (i) the last day of each Interest Period applicable to such Loan, (ii) if earlier, three months after the commencement of such Interest Period and (iii) the final maturity date of such Loan.
Interest Period” means, in connection with a LIBOR Rate Loan, an interest period of one, two, three, or six months, as selected by Lead Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (a) initially, commencing on the Closing Date or Conversion/Continuation Date thereof, as the case may be and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, that (i) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day, (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (b)(iii) of this definition, end on the last Business Day of a calendar month, and (iii) no Interest Period with respect to any portion of any Term Loans shall extend beyond the Maturity Date.
Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.
Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
Internally Generated Cash” shall mean any Cash or Cash Equivalents of any Loan Party that is not generated from an Asset Sale, a Casualty Event, an incurrence of Indebtedness, an issuance of Capital Stock or a capital contribution.
Inventory” has the meaning ascribed to such term in the Security Agreement.

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Investment” means (a) any direct or indirect purchase or other acquisition by the Loan Parties or any of their Subsidiaries (excluding the Excluded Entities) of, or of a beneficial interest in, any of the Securities or all or substantially all of the assets of any other Person (other than a Guarantor Subsidiary) (or of any division or business line of such other Person), (b) any direct or indirect redemption, retirement, purchase, or other acquisition for value by any Subsidiary of Global Parent (excluding the Excluded Entities) from any Person (other than a Loan Party), of any Capital Stock of such Person, (c) any direct or indirect loan, advance, or capital contributions by Global Parent or any of its Subsidiaries (excluding the Excluded Entities) to any other Person (other than a Loan Party), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business, and (d) any direct or indirect Guaranty of any obligations of any other Person (other than a Loan Party). The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write ups, write downs, or write offs with respect to such Investment.
Joinder” means a Joinder substantially in the form of Annex 1 to the Security Agreement delivered by a Loan Party pursuant to Section 5.10.
Joint Venture” means a joint venture, partnership, or other similar arrangement, whether in corporate, partnership, or other legal form; provided, that in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
Kayne” has the meaning ascribed thereto in the preamble to this Agreement.
Lead Borrower” has the meaning specified in the preamble hereto.
Lender” means (i) each lender listed on the signature pages hereto as a Lender, and (ii) any other Person that becomes a party hereto pursuant to an Assignment Agreement other than any Person that ceases to be a party hereto pursuant to any Assignment Agreement.
“Liberty Area Development Rights” means certain development rights allotted or sold, or able to be allotted or sold, to an area developer to market and sell territories within a specified geographic area to eligible franchisees.
Liberty Borrower” means Franchise Group Intermediate L 2, LLC, a Delaware limited liability company.
Liberty Credit Agreement” means that certain Credit Agreement, dated as of May 16, 2019, among Liberty Borrower, CIBC Bank USA, as administrative agent, the lenders party thereto and the other parties party thereto, as amended, modified, supplemented or refinanced from time to time, but only with other revolving Indebtedness which does not restrict Liberty Holdings or any of its Subsidiaries from being Loan Parties, is secured only by the receivables of Liberty Holdings and its Subsidiaries and the proceeds thereof and is not secured by any assets other than the such receivables, and permits the Obligations and the Liens granted to the Collateral Agent under the Loan Documents.
“Liberty Franchise Rights” mean the rights of a franchisee of any Liberty Party within any specified geographic area.
Liberty Holdings” means Franchise Group Intermediate L 1, LLC, a Delaware limited liability company.
Liberty Intercreditor Agreement” means that certain Subordination and Intercreditor Agreement, dated as of February 14, 2020, among CIBC Bank USA, as Senior Agent (as defined therein), the Administrative Agent and the Collateral Agent and the other parties party thereto, as amended, modified, supplemented from time to time.

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Liberty Joinder Date” means the date on which (x) the obligations set forth in Section 5.10(b) have been satisfied and (y) the Administrative Agent shall have received a certificate of an Authorized Officer of the Lead Borrower dated as of the Liberty Joinder Date and addressed to the Agents and Lenders bringing down the representation in Section 4.21 hereof as of the Liberty Joinder Date including the Liberty Parties as Loan Parties.
Liberty Loan Documents” means the “Loan Documents” as defined in the Liberty Credit Agreement.
Liberty Parties” means Liberty Holdings and each of its Subsidiaries.
Liberty/Revolution Top Parent” means Franchise Group Intermediate L, LLC, a Delaware limited liability company.
Liberty Security Agreements” means collectively, (i) that certain Pledge and Security Agreement, dated as of February 14, 2020, by and among the Liberty Parties in favor of the Collateral Agent, as amended, modified, supplemented from time to time, which for the avoidance of doubt, as of the Second Amendment Effective Date was consolidated into the Security Agreement and (ii) each intellectual property security agreement pursuant to the Security Agreement or the security agreement referred to in clause (i) by the Liberty Parties in favor of the Collateral Agent.
Liberty Ticking Fee” means shall have the meaning specified in Section 2.10.
Liberty Trigger Date” means April 30, 2020.  
LIBOR Rate” has the meaning assigned to such term in the definition of Adjusted LIBOR Rate.
LIBOR Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.
Licensed Trademarks” has the meaning specified in Section 4.26.
Lien” means (a) any lien, mortgage, pledge, assignment, hypothecation, deed of trust, security interest, charge, or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust, or other preferential arrangement having the practical effect of any of the foregoing, and (b) in the case of Securities, any purchase option, call, or similar right of a third party with respect to such Securities.
Loan” means a Term Loan.
Loan Account” means an account maintained hereunder by Administrative Agent on its books of account at the Payment Office and with respect to Lead Borrower, in which it will be charged with all Loans made to, and all other Obligations incurred by, the Loan Parties.
Loan Document” means any of this Agreement, the Intercreditor Agreement, if any, the Liberty Intercreditor Agreement, if any, the Collateral Documents, the Fee Letter, the Flow of Funds Agreement, any Guaranty, the Intercompany Subordination Agreement, each Term Note, the Perfection Certificate, any other fee letter executed and delivered by any Loan Party to any Secured Party and all other documents, instruments, certificates or agreements executed and delivered by a Loan Party for the benefit of Administrative Agent, the Collateral Agent or any Lender in connection herewith.
Loan Party” means each Borrower and each Guarantor, in each case, other than the Excluded Entities and the Excluded Subsidiaries.
“Local Deposit Account” means a Deposit Account maintained by a Liberty Party with respect to (and used only for) one or more store locations.

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Make-Whole Premium” means with respect to a prepayment or repayment of the Loans in any principal amount on any date on or prior to the first anniversary of the Closing Date, the excess of (a) (i) the sum of such principal amount prepaid on such date plus 3.00% times such principal amount, plus (ii) the present value on such date of all required and unpaid interest payments that would be due on such principal amount through the first anniversary of the Closing Date accruing at a rate equal to the Adjusted LIBOR Rate for an Interest Period of three months in effect on the third Business Day prior to such prepayment or repayment plus the Applicable Margin for LIBOR Rate Loans in effect as of such date of prepayment or repayment computed using a discount rate equal to the Treasury Rate as of such date plus 50 basis points, over (b) such principal amount.
Margin Stock” has the meaning specified in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
Material Adverse Effect” means (i) after the Closing Date, a material adverse effect on and/or material adverse developments with respect to (a) the business operations, properties, assets, condition (financial or otherwise) or liabilities of the Loan Parties taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform their payment obligations under the applicable Loan Documents or (c) the rights and remedies, taken as a whole, of the Agents and the Lenders under the Loan Documents, except that any adverse effect, change, event, or development arising from or relating to or resulting from (1) general business, industry or economic conditions, or (2) local, regional, national or international political or social conditions, including the declaration of a national emergency, in each case with respect or relating to the epidemic, pandemic or disease relating to the COVID-19 Pandemic shall not be taken into account in determining whether a material and adverse effect has occurred under clauses (i)(a) or (b) above or (ii) on the Closing Date, a “Material Adverse Effect” as defined in the Acquisition Agreement.
Material Intellectual Property” means Intellectual Property that is owned by a Grantor and the loss of which would reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
Material Real Estate Asset” means any fee owned Real Estate Asset of a Loan Party having a fair market value in excess of $1,000,000, as reasonably estimated by the Lead Borrower in good faith in consultation with Collateral Agent.
Maturity Date” means the earliest of (a) February 14, 2025, (b) the date that the Term Loan shall become due and payable in full hereunder, whether by acceleration or otherwise, and (c) the ABL Maturity Date.
Merger Sub” has the meaning specified in the preamble hereto.
Moody’s” means Moody’s Investor Services, Inc.
Mortgage” means a mortgage, deed of trust, or other deed to secure debt, in form and substance reasonably satisfactory to Collateral Agent, made by a Loan Party in favor of Collateral Agent, for the benefit of the Secured Parties, granting a Lien on any Real Property securing the Obligations and delivered to Collateral Agent.
Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.
Narrative Report” means, with respect to the financial statements for which such narrative report is required, (a) a narrative report describing the operations of the Loan Parties in the form prepared for presentation to senior management thereof, and (b) a financial report package including management’s discussion and analysis of the financial condition and results of operations, in each case, for the applicable fiscal month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate with comparison to and variances from the immediately preceding period and budget.

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Net Proceeds” means (a) with respect to any Asset Sale, an amount equal to: (i) Cash payments received by the Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities) from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (A) income or gains Taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale during the Tax period the sale occurs, (B) payment of the outstanding principal amount of, premium or penalty and interest on, any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, and (C) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities) in connection with such Asset Sale; provided, that upon release of any such reserve, the amount released shall be considered Net Proceeds, and (b) with respect to any insurance, condemnation, taking, or other casualty proceeds, an amount equal to: (i) any Cash payments or proceeds received by Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities) (A) under any casualty, business interruption, or “key man” insurance policies in respect of any covered loss thereunder or (B) as a result of the condemnation or taking of any assets of Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities) by any Person pursuant to the power of eminent domain, condemnation, or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (A) any actual and reasonable costs incurred by Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities) in connection with the adjustment or settlement of any claims of Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities) in respect thereof, and (B) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (b)(i)(B) of this definition to the extent paid or payable to non-Affiliates, including income Taxes payable as a result of any gain recognized in connection therewith (including, without limitation, Permitted Tax Payments).
Non-Consenting Lender” shall have the meaning assigned to such term in Section 2.22).
Non-US Lender” has the meaning specified in Section 2.19(d)(ii).
Obligations” means all loans (including the Term Loans (inclusive of Protective Advances)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), liabilities, obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter or any other fee letter to which any of the Secured Parties are party), expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents, and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Loan Party is required to pay or reimburse by the Loan Documents, by law, or otherwise in connection therewith. Without limiting the generality of the foregoing, the Obligations of Borrowers under the Loan Documents include the obligation to pay (a) the principal of the Term Loans, (b) interest accrued on the Term Loans, (c) expenses, (d) the other fees payable under this Agreement or any of the other Loan Documents, and (e) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
OFAC Sanctions Programs” means (a) the Requirements of Law and Executive Orders administered by OFAC, including but not limited to, Executive Order No. 13224, and (b) the list of Specially Designated Nationals and Blocked Persons administered by OFAC, in each case, as renewed, extended, amended, or replaced.

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Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its articles of organization or certificate of formation, as amended, and its operating agreement or limited liability company agreement, as amended. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
Other Connection Taxes” has the meaning specified in Section 2.19(a).
Other Taxes” has the meaning specified in Section 2.19(b).
Owned Trademarks” has the meaning specified in Section 4.26.
Parent Company” means each of Global Parent, Liberty/Revolution Top Parent, Vitamin Intermediate Parent and Vitamin Top Parent.
Participant Register” has the meaning specified in Section 10.06(h)(ii).
PATRIOT Act” has the meaning specified in Section 4.32.
Payment Office” means Administrative Agent’s office as may be designated in writing from time to time by Administrative Agent to Lead Borrower.
PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
Perfection Certificate” means a certificate, in the form attached hereto as Exhibit B, reasonably satisfactory to Collateral Agent that provides information with respect to the assets of each Loan Party (the “Initial Perfection Certificate”), as modified by that certain Supplement to Perfection Certificate, dated as of the Second Amendment Effective Date, by the Loan Parties.
Permitted Acquisition” means the purchase or other acquisition, by merger, consolidation or otherwise, by the Lead Borrower or any Subsidiary of any Capital Stock in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person; provided that (a) in the case of any purchase or other acquisition of Capital Stock in a Person, (i) such Person, upon the consummation of such purchase or acquisition, will be a Subsidiary (including as a result of a merger or consolidation between any Subsidiary and such Person), or (ii) such Person is merged into or consolidated with a Subsidiary and such Subsidiary is the surviving entity of such merger or consolidation, (b) with respect to each such purchase or other acquisition, all actions required to be taken with respect to such newly created or acquired Subsidiary (including each subsidiary thereof) or assets in order to satisfy the requirements set forth in Section 5.10, Section 5.11 or Section 5.13, as applicable, (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made that are reasonably satisfactory to the Collateral Agent) (unless such newly created or acquired Subsidiary is an Excluded Entity or is otherwise an Excluded Subsidiary), (c) after giving effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing or would immediately result therefrom, (d) such acquisition shall not be hostile and shall have been approved by the Board of Directors and/or the stockholders or other equityholders of such Person, as applicable, (e) the total consideration paid in connection with such purchase or acquisition shall not exceed $5,000,000 in any Fiscal Year, and (f) Borrowers have shall have provided each Agent with written notice of the proposed acquisition at least 3 Business Days prior to the anticipated closing date of the proposed acquisition and

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substantially contemporaneously with the closing of the acquisition shall have provided each Agent copies of the acquisition agreement and other material documents and deliverable relative to the proposed acquisition.
Permitted Discretion” means a good faith determination made by an Agent, exercising commercially reasonable business judgment.
Permitted Dividend Amount” means, in respect of any Subject Fiscal Quarter, $8,250,000.
Permitted Holders” means (a) Vintage Capital Management, LLC, (b) Brian Kahn, (c) Lauren Kahn, (d) Tributum, L.P., (e) Stefac LP, (f) Vintage Tributum, L.P., (g) Kahn Capital Management, LLC, (h) Vintage Vista GP, LLC, (i) Andrew Laurence, (j) B. Riley FBR, Inc., (k) Bryant R. Riley, (l) any direct or indirect current or former equityholders of Buddy’s Newco, LLC or Franchise Group New Holdco, LLC, (m) Samjor Family LP, (n) Vintage RTO, L.P. and (o) any Affiliates, general partners, limited partners, investment managers, investment advisors, investment funds or direct or indirect equity holders, successors or assigns of any of the foregoing.
Permitted Indebtedness” means:
(a)    the Obligations,
(b)    Indebtedness of any Guarantor Subsidiary to any Borrower or to any other Guarantor Subsidiary, or of any Borrower to any Guarantor Subsidiary, or of any Loan Party to any Subsidiary of Global Parent that is not a Loan Party; provided, that (i) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, and (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Subordination Agreement,
(c)    Indebtedness incurred by the Loan Parties and their Subsidiaries arising from agreements providing for indemnification, adjustment of purchase or acquisition price, deferred purchase price or similar obligations, or from guaranties or letters of credit, surety bonds, or performance bonds securing the performance of such Loan Party or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions, the Transactions or permitted dispositions of any business or assets of such Loan Party or such Subsidiary,
(d)    Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal, or similar obligations incurred in the ordinary course of business and Indebtedness constituting guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees, and licensees of the Loan Parties and their Subsidiaries (including, without limitation, Indebtedness consisting of take or pay obligations contained in supply agreements in the ordinary course of business), and including, without limitation, Indebtedness consisting of obligations contained in non-exclusive licenses of patents, trademarks, and other intellectual property rights granted by any Loan Party or any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of such Loan Party or any such Subsidiary),
(e)    Indebtedness in respect of Cash Management Services, netting services, automated clearinghouse arrangements, overdraft protections, and otherwise in connection with deposit accounts or from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business,
(f)    Indebtedness described in Schedule 6.1, but not any extensions, renewals, or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement (or, with respect to Indebtedness described in the supplement to Schedule 6.1 attached to the Second Amendment, the Second Amendment Effective Date), and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to Lenders than the Indebtedness being refinanced or extended (except that the interest rate on such Indebtedness shall be at the then prevailing market rate), and the average life to maturity

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thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, that such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed, or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended, or refinanced (together with any premium, penalty, interest and any fees and expenses), or (C) be incurred, created, or assumed if any Event of Default has occurred and is continuing or would result therefrom,
(g)    Permitted Purchase Money Indebtedness,
(h)    Indebtedness owing to insurance carriers and incurred to finance insurance premiums of Global Parent or any of its Subsidiaries in the ordinary course of business,
(i)    guarantees by Global Parent and the Loan Parties of any indebtedness or other obligations of any Loan Party or Subsidiary (other than an Excluded Entity) permitted to be incurred hereunder,
(j)     Indebtedness (1) incurred by Sears Top Parent or any of its Subsidiaries arising under the Workers Comp L/C so long as the face amount thereof does not exceed $5,565,000, together with any additional amounts (in an aggregate additional face amount not exceeding $5,565,000) temporarily outstanding for no longer than ten (10) Business Days (or such later date as the Administrative Agent may approve) during the replacement process of the Workers Comp L/C as permitted by the definition of Workers Comp L/C and (2) incurred by the Lead Borrower or any of its Subsidiaries in respect of letters of credit, bank guarantees, warehouse receipts, bankers’ acceptances or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers compensation claims;
(k)    the ABL Obligations so loanlong as they are subject to the terms of the Intercreditor Agreement and such ABL Obligations in aggregate amount do not exceed the Maximum ABL Principal Obligations (as defined in the Intercreditor Agreement) and any refinancing of the Indebtedness under the ABL Credit Agreement and the ABL Loan Documents and such ABL Obligations in aggregate amount not to exceed the Maximum ABL Principal Obligations,
(l)    on and after the Liberty Joinder Date, Indebtedness of Liberty Holdings and its Subsidiaries under the Liberty Credit Agreement in an aggregate principal amount not exceeding $100,000,000 (plus any premium, penalty, fees and expenses) and otherwise meeting the terms and conditions of the definition of “Liberty Credit Agreement”,[reserved],
(m)    Indebtedness representing deferred compensation or stock-based compensation owed to employees, consultants or independent contractors of Global Parent or its Subsidiaries incurred in the ordinary course of business or consistent with past practice;,
(n)    all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (m) above;,
(o)    Indebtedness assumed after the Closing Date in connection with any (1) Permitted Acquisition; provided that such Indebtedness was not incurred in contemplation of such acquisition or such Person becoming a Loan Party or (2) any other Investment not prohibited by Section 6.07; provided that any Indebtedness assumed pursuant to this clause (o) (other than, to the extent constituting Indebtedness, motor vehicle leases) shall not exceed in an aggregate principal amount of $2,500,000 at any time outstanding,
(p)     to the extent constituting Indebtedness, motor vehicle leases in the ordinary course of business, subject to Section 6.13,

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(q)     Indebtedness of any Borrower, Guarantor or any of their Subsidiaries entered into in the ordinary course of business pursuant to a Hedge Agreement; provided, that, (i) such arrangements are not for speculative purposes, and (ii) such Indebtedness shall be unsecured, except to the extent secured by a Permitted Lien, and
(pr)    other Indebtedness in an aggregate principal amount not exceeding $1,250,000 at any time outstanding.,
(s)     Indebtedness not to exceed $1,000,000 owing to First Horizon Bank (formerly First Tennessee Bank) in connection with a credit card program provided by such lender to the Liberty Parties from time to time,
(t)     Indebtedness of any Loan Party or any of their Subsidiaries incurred in connection with any non-payment of rent by such Loan Party or Subsidiary caused by the COVID-19 Pandemic; provided that the aggregate outstanding amount of such Indebtedness attributable to unpaid rent shall not exceed $7,700,000 at any time, and
(u)     unsecured Indebtedness owing to area developers and/or franchisees incurred by the Liberty Parties solely for the purpose of repurchasing Liberty Area Development Rights and/or Liberty Franchise Rights as permitted under clauses (o) and (p) of the definition of “Permitted Investments”; provided that (i) such Indebtedness shall not bear interest, and (ii) the aggregate outstanding principal amount of such Indebtedness shall not exceed $250,000 at any time.
Permitted Investments” means:
(a)    Investments in Cash and Cash Equivalents,
(b)    equity Investments owned as of the Closing Date in any Subsidiary of Global Parent and Investments made after the Closing Date in any wholly owned Guarantor Subsidiaries,
(c)    Investments (i) in any Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors, and (ii) deposits, prepayments, and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Loan Parties and their Subsidiaries,
(d)    to the extent constituting an Investment, (1) Permitted Indebtedness and (2) purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, non-exclusive licenses or leases of other assets, Intellectual Property, or other rights, in each case in the ordinary course of business;
(e)    Consolidated Capital Expenditures,
(f)    the Acquisition and Permitted Acquisitions,
(g)    Investments described in Schedule 6.7,
(h)    Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business,
(i)    advances in the form of prepayment of expenses that are expected to be due and payable in connection with operations of the Loan Parties and their Subsidiaries in the ordinary course of business, so long as such expenses are being paid in accordance with customary trade terms of the applicable Person,
(j)    the A Team Secured Note,
(k)    Investments consisting of non-exclusive licenses of patents, trademarks, and other intellectual property rights granted by any Loan Party or any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of such Loan Party or any such Subsidiary,

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(l)    promissory notes and other non-cash consideration received in connection with dispositions permitted by Section 6.09,
(m)     advances of payroll payments to employees in the ordinary course of business, and
(n)    other Investments not otherwise described above in an aggregate amount not to exceed at any time $2,500,000 and at the time of making any such Investment no Event of Default shall have occurred and be continuing or would immediately result therefrom.,
(o)    so long as (x) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby and (y) both prior and after giving effect to such repurchase, the Fixed Charge Coverage Ratio is at least 0.25x greater than the then applicable level set forth in Section 6.08(a), repurchases of Liberty Area Development Rights; provided that (i) any such repurchase shall be made at a purchase price not to exceed four times the net revenue (i.e. the actual amount received by the area developer from franchise owners related to tax preparation royalties) for the applicable geographic area covered by such Liberty Area Development Rights for the most-recent trailing twelve-month period, (ii) the purchase price for any such repurchase will be paid only from available cash, Indebtedness incurred in accordance with clause (u) of the definition of “Permitted Indebtedness” and/or forgiveness of loans and other advances made by the Liberty Parties to the applicable area developer; and (iii) the aggregate purchase price for repurchases of Liberty Area Development Rights shall not exceed $250,000 during any Fiscal Year,
(p)    so long as (x) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby and (y) both prior and after giving effect to such repurchase, the Fixed Charge Coverage Ratio is at least 0.25x greater than the then applicable level set forth in Section 6.08(a), repurchases of Liberty Franchise Rights; provided that (i) any such repurchase shall be made at a purchase price not to exceed the net tax return preparation revenue for the applicable franchise included in such Liberty Franchise Rights for the most-recent trailing twelve-month period, (ii) the purchase price for any such repurchase will be paid only from available cash, Indebtedness incurred in accordance with clause (u) of the definition of “Permitted Indebtedness” and/or forgiveness of loans and other advances made by the Liberty Parties to the applicable franchisee, and (iii) the aggregate purchase price for repurchases of Liberty Franchise Rights shall not exceed $250,000 during any Fiscal Year, and
(q) loans and advances to franchisees made by the Liberty Parties in the ordinary course of business and consistent with past practice in connection with the sale of Liberty Franchise Rights; provided that (i) such loans and advances shall be evidenced by promissory notes and any such promissory notes with an individual value or more than $250,000 shall be pledged to the Collateral Agent, for the benefit of the Secured Parties, in accordance with the Loan Documents and (ii) the aggregate outstanding principal amount of such loans and advances made in reliance on this clause (q) shall not exceed $5,000,000 at any time.
Permitted Liens” means:
(a)    Liens in favor of Collateral Agent for the benefit of the Secured Parties granted pursuant to any Loan Document,
(b)    Liens for Taxes if obligations with respect to such Taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and reserves required by GAAP have been made,
(c)    statutory Liens of landlords, banks (and rights of set off), carriers, warehousemen, mechanics, repairmen, workmen, and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or by Section 303(k) of ERISA), in each case incurred in the ordinary course of business for amounts not overdue by more than thirty (30) days or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and reserves required by GAAP have been made,

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(d)    Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance, and other types of social security, or to secure appeal bonds or the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds, and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale, or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof,
(e)    easements, rights of way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of the Loan Parties and their Subsidiaries,
(f)    any interest or title of a lessor or sublessor under any lease of real estate permitted hereunder,
(g)    Liens solely on any cash earnest money deposits made by any Loan Party or any of its Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder,
(h)    purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business,
(i)    Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods,
(j)    any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property,
(k)    non-exclusive licenses of patents, trademarks, and other intellectual property rights granted by any Loan Party or any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of such Loan Party or any such Subsidiary,
(l)    Liens in favor of banking or other financial institutions arising as a matter of law or relating exclusively to Cash Management Services,
(m)    Liens described in Schedule 6.2,
(n)    Liens securing Permitted Purchase Money Indebtedness; provided, that any such Lien shall encumber only the asset subject to such Capital Lease or the asset acquired with the proceeds of such Indebtedness,
(o)    cash collateral in an aggregate amount at any time not exceeding 105% multiplied the face amount of the Workers Comp L/C, together with any additional cash collateral (in an aggregate additional amount not exceeding 105% off the face amount of any replacement Workers Comp L/C) temporarily outstanding for no longer than ten (10) Business Days (or such later date as Administrative Agent may approve) during the replacement process of the Workers Comp L/C as permitted by the definition of Workers Comp L/C,
(p)    Liens securing the ABL Obligations to the extent permitted to be incurred pursuant to clause (j) of Permitted Indebtedness; provided that such Liens are at all times subject to the Intercreditor Agreement,
(q)    on and after the Liberty Joinder Date, First Priority Liens on all working capital assets and proceeds thereof of Liberty Holdings and its Subsidiaries securing Indebtedness permitted to be incurred pursuant to clause (l) of Permitted Indebtedness and second priority Liens on substantially all other assets and proceeds thereof of Liberty Holdings and its Subsidiaries; provided that such Liens are at all times subject to an intercreditor agreement reasonably acceptable to each Agent,[reserved],
(r)    Liens in favor of Credit Card Issuers and Credit Card Processors arising in the ordinary course of business securing the obligation to pay customary fees and expenses in connection with credit card arrangements,

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(s)    Liens in respect of any judgments that, individually or in the aggregate, would not constitute an Event of Default hereunder,
(t)    possessory Liens in favor of brokers and dealers in connection with the acquisition or dispositions of Permitted Investments, provided that such liens (i) attach only to such Investments and (ii) secure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such Investments and not any obligation in connection with Margin Stock,
(u)    any interest of, and Liens granted to, consignors in the ordinary course of business with respect to the consignment of goods to a Loan Party,
(v)    Liens constituting premium rebates securing financing arrangements with respect to insurance premiums,
(w)    Liens existing on property or other assets at the time of its acquisition or existing on the property or other assets of any Person at the time such Person becomes a Loan Party, in each case after the Closing Date, and any modifications, replacements, renewals or extensions thereof; provided that (A) any such Lien was not created in contemplation of such acquisition or such Person becoming a Loan Party, (B) any such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time that require or include, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (C) any such Lien secures Indebtedness and other obligations are permitted under clause (g), clause (o) or clause (p) of the “Permitted Indebtedness” definition;,
(x)     Liens on motor vehicles securing Indebtedness permitted by clause (p) of the definition of “Permitted Indebtedness”; and,
(y)     other Liens securing obligations in an aggregate principal amount not exceeding $1,250,000 at any time outstanding., and
(z)     Liens on real property owned by JTH Court Plaza, LLC located at 2387 Liberty Way, Virginia Beach, VA 23456, to secure the obligations of the Liberty Parties under the credit card program referenced in clause (s) of the definition of “Permitted Indebtedness”.
Permitted Purchase Money Indebtedness” means, as of any date of determination, (A) Indebtedness (other than the Obligations, but otherwise including Capital Leases and purchase money Indebtedness), incurred after the Closing Date and at the time of, or within 180 days after, the acquisition, purchase, lease, construction, repair, replacement or improvement of any fixed assets for the purpose of financing all or any part of the acquisition, purchase, lease, construction, repair, replacement or improvement cost thereof and (B) any refinancing of any Indebtedness set forth in the immediately preceding clause (A) (or successive refinancings thereof), in each case, in an aggregate principal amount outstanding at any one time not in excess of $10,000,000.
Permitted Tax Payments” means distributions or other payments from Lead Borrower to Global Parent, which will in turn be distributed by Global Parent, in an amount equal to the amounts required under Section 4.01(b), 4.01(c) and 4.01(d) of the First Amended and Restated Limited Liability Company Agreement of Global Parent, dated as of July 10, 2019, as in effect on the date hereof.
Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts, or other organizations, whether or not legal entities, and Governmental Authorities.

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Phase I Report” means, with respect to any Real Property, a report that (a) conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, E 1527, (b) was conducted no more than six months prior to the date such report is required to be delivered hereunder, by one or more environmental consulting firms reasonably satisfactory to Collateral Agent, (c) includes an assessment of asbestos containing materials at such Real Property, and (d) is accompanied by an estimate of the reasonable worst case cost of investigating and remediating any Hazardous Materials activity identified in the Phase I Report as giving rise to an actual or potential material violation of any Environmental Law or as presenting a material risk of giving rise to a material Environmental Action.
Principal Office” means, the Administrative Agent’s “Principal Office” as set forth on Appendix B or such other office as such Person may from time to time designate in writing to Borrower and each Lender.
Pro Rata Share” means (a) with respect to all payments, computations, and other matters relating to the Term Loan of any Lender, the percentage obtained by dividing (i) the Term Loan Exposure of that Lender, by (ii) the aggregate Term Loan Exposure of all Lenders, and (b) for all other purposes with respect to each Lender, the percentage obtained by dividing (i) an amount equal to the sum of the Term Loan Exposure of that Lender, by (ii) an amount equal to the sum of the aggregate Term Loan Exposure of all Lenders.
Projections” has the meaning specified in Section 4.08.
Protective Advances” has the meaning specified in Section 2.03.
Qualified Capital Stock” means and refers to any Capital Stock issued by Global Parent or Lead Borrower (and not by any other Person) that is not Disqualified Capital Stock.
Qualified Cash” means, as of any date of determination, the amount of unrestricted Cash and Cash Equivalents of the Loan Parties that is in Deposit Accounts or in Securities Accounts, or any combination thereof, which such Deposit Account or Securities Account is subject to a Control Agreement (subject to the timing requirements set forth in Section 6.17) and is maintained by a branch office of the bank or securities intermediary located within the United States.
Real Estate Asset” means, at any time of determination, any interest (fee, leasehold, or otherwise) then owned by any Loan Party in any real property.
Real Property” means any real property (including all buildings, fixtures, or other improvements located thereon) now, hereafter, or heretofore owned or leased by any Loan Party or any of their respective predecessors or Affiliates.
Refranchising Activity” means the sale of any retail locations owned or operated by a Loan Party to franchisee(s) to be owned and operated by such franchisee(s), with such franchisee(s) to provide royalties to a Loan Party in connection with the operation of such retail locations, which for the avoidance of doubt, if such Refranchising Activity results in proceeds to a Loan Party in excess of $500,000 per Fiscal Quarter shall constitute an extraordinary, non-recurring gain for purposes of calculating “Consolidated EBITDA.”
Register” has the meaning specified in Section 2.06(b).
Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
Reinvestment Amounts” has the meaning specified in Section 2.13(a).
Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

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Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.
Replacement Lender” has the meaning specified in Section 2.22.
Reports” has the meaning specified in Section 9.11(a).
Required Lenders” means, as of any date of determination, the Required Tranche A-1 Lenders and the Required Tranche A-2 Lenders.
Required Prepayment Date” has the meaning specified in Section 2.14(b).
Required Tranche A-1 Lenders” means, as of any date of determination, Lenders whose Tranche A-1 Term Loan Exposures aggregate to more than 50% of the Tranche A-1 Term Loan Exposures of all of the Lenders.
Required Tranche A-2 Lenders” means, as of any date of determination, Lenders whose Tranche A-2 Term Loan Exposures aggregate to more than 50% of the Tranche A-2 Term Loan Exposures of all of the Lenders.
Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, 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 Junior Payment” means (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Lead Borrower or Global Parent now or hereafter outstanding, except a dividend payable solely in shares of that class of Capital Stock to the holders of that class, (b) any redemption, retirement, sinking fund or similar payment, purchase, or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities), (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire shares of any class of Capital Stock of Global Parent or any of its Subsidiaries (for the avoidance of doubt, this includes the Excluded Entities), (d) management or similar fees (and related expenses) payable to any Permitted Holder or any of its Affiliates or any other Affiliates of any Loan Party, and (e) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in substance or legal defeasance), sinking fund, or similar payment with respect to, any subordinated Indebtedness (excluding, to the extent considered subordinated, the ABL Obligations), in each case, whether such dividend, distribution or other payment is made in cash or other assets.
Revolution Holdings” means Franchise Group Intermediate R, LLC, a Delaware limited liability company.
S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.
Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, or (d) a Person resident in or determined to be resident in a country, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.

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Sanctioned Person” means, at any time, (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC or any other Sanctions-related list maintained by any relevant Sanctions authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized, or resident in a country that is a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.
Sanctions” means individually and collectively, respectively, any and all economic, trade, financial, or other sanctions laws, regulations, or embargoes imposed, administered, or enforced from time to time by: (a) the United States of America, including, without limitation, those administered by OFAC or the U.S. Department of State, (b) the United Nations Security Council, or (c) any other governmental authority in any jurisdiction in which any Loan Party or any of their respective Subsidiaries is located or doing business.
Sears Credit Agreement” means that certain Credit Agreement, dated as of October 23, 2019, among Sears Top Parent, certain of its subsidiaries as guarantors, the other parties party thereto and Guggenheim Credit Services, LLC, a Delaware limited liability company, as administrative agent, as amended, restated, supplemented, or otherwise modified from time to time.
Sears Top Parent” means Franchise Group Intermediate S, LLC, a Delaware limited liability company.
“Second Amendment” means that certain Limited Waiver, Joinder and Amendment Number Two to Credit Agreement, dated as of May 1, 2020 by and among Liberty Parties, Global Parent, Lead Borrower, each other Person identified as a “Borrower” on the signature pages thereof, Administrative Agent and the Lenders party thereto.
“Second Amendment Effective Date” means May 1, 2020.
Secured Parties” means the Agents and Lenders.
Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated, or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares, or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase, or acquire, any of the foregoing.
Securities Account” means a securities account (as defined in the UCC).
Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
Security Agreement” means thethat certain Consolidated, Supplemented, Amended and Restated Security Agreement executed by the Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties, substantially in the form of Exhibit G, as it may be amended, supplemented, or otherwise modified from time to time.
Solvent” means, with respect to the Global Parent, the Lead Borrower and its Subsidiaries (on a consolidated basis), that as of the date of determination, both (a)(i) the sum of the debt (including contingent liabilities) of Global Parent, the Lead Borrower and its Subsidiaries (on a consolidated basis) does not exceed the present fair saleable value of the present assets of the Loan Parties (on a consolidated basis), (ii) the capital of Global Parent, the Lead Borrower and its Subsidiaries (on a consolidated basis) is not unreasonably small in relation to its business as contemplated on the date of determination, and (iii) Global Parent, the Lead Borrower and its Subsidiaries (on a consolidated basis) have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that they will incur, debts beyond their ability to pay such debts as they become due (whether at maturity or otherwise), and (b) Global Parent, the Lead Borrower and its Subsidiaries (on a consolidated basis) are “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and

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conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
Specified Acquisition Agreement Representations” means such of the representations made by, or with respect to, AFGI in the Acquisition Agreement, but only to the extent that Ultimate Parent (or its applicable affiliate) has a right (taking into account any applicable cure provisions) not to consummate the transactions contemplated by the Acquisition Agreement or to terminate its (or its applicable affiliate’s) obligations under the Acquisition Agreement, in each case, as a result of a breach of such representations and warranties that are material to the interests of the Lenders.
Specified Event of Default” means an Event of Default described under Section 8.01(a), (c) (solely with respect to Section 5.01(a), (b), (c) and (d) and Section 6.08), (f) or (g); provided, that, solely for purposes of Section 9.05, Section 10.06, and the definition of “Eligible Assignee”, any Event of Default pursuant to Section 8.01(c) shall constitute a Specified Event of Default only if such Event of Default occurs in (x) two consecutive Fiscal Quarters or (y) two Fiscal Quarters in any four-Fiscal Quarter period. For the avoidance of doubt, the immediately preceding proviso shall not apply for purposes of determining whether default interest applies pursuant to Section 2.09.
Specified Holders” means (a) Samjor Family LP, and (b) Brian Kahn.
Specified Representations” means the representations and warranties set forth in Sections 4.01(a), 4.01(b) (solely with respect to power and authority to enter into the Loan Documents and to carry out the transactions contemplated thereby), 4.03, 4.04(f) (solely as it relates to the borrowing of the Term Loan, the guaranteeing of the Obligation under the Loan Documents, performance of the Loan Documents, and the granting of security interests in the Collateral), 4.06, 4.16 (as to clause (a) thereof, solely with respect to the Investment Company Act of 1940), 4.17, 4.21, 4.31, 4.32, 4.33, and 4.35.
Subject Fiscal Quarter” has the meaning specified in Section 6.05(c).
Subject Transaction” has the meaning specified in Section 6.08(e).
Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture, or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees, or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction, or withholding (including backup withholding) imposed, levied, collected, withheld, or assessed by any Governmental Authority and all interest, penalties and additions to tax with respect thereto.
Term Loan” means each Tranche A-1 Term Loan and each Tranche A-2 Term Loan made by the respective Lenders to Borrower pursuant to Section 2.01(a).

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Term Loan Commitment” means such Lender’s Tranche A-1 Term Commitments and Tranche A-2 Term Commitments, as applicable, in effect as of such time, and “Term Loan Commitments” means such Tranche A-1 Term Commitments and Tranche A-2 Term Commitments of all Lenders in the aggregate. The amount of each Lender’s Term Loan Commitment is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. As of the Closing Date, the aggregate amount of the Term Loan Commitments is $575,000,000.
Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Term Loan of such Lender; provided, that at any time prior to the making of the Term Loan, the Term Loan Exposure of any Lender shall be equal to such Lender’s Term Loan Commitment.
Term Notes” means collectively each Tranche A-1 Term Note and each Tranche A-2 Term Note.
Terminated Lender” has the meaning specified in Section 2.22.
Third Party Franchisee Eligibility Requirements” means, collectively, each of the following:
(a)     The applicable Loan Party has executed an agreement with the applicable Third Party Franchisee, to operate a franchise under one of the Brands as listed on Schedule 7.1 hereto, or any subsequent rebranding of such franchise, at a location owned or leased and operated by such Third Party Franchisee, substantially on the standard form agreements containing terms and conditions established by the Loan Parties from time to time and, with respect to any agreement executed or renewed or extended after the Maturity Date, to include (A) an acknowledgement from such Third Party Franchisee that the Loan Parties, or Collateral Agent, acting on behalf of the Loan Parties, are authorized to transfer proceeds of the Inventory consigned by such Loan Party to such Third Party Franchisee from the bank account maintained by such Third Party Franchisee to an account in the name of a Loan Party, and (B) an acknowledgement by the Third Party Franchisee that the applicable Loan Party has granted a Lien to Collateral Agent on the Inventory consigned by such Loan Party to the Third Party Franchisee and an agreement by the Third Party Franchisee to reasonably cooperate with the Collateral Agent in the event of the exercise by the Collateral Agent of its rights and remedies with respect to such Lien;
(b)    The applicable Loan Party has provided Collateral Agent with evidence that such Loan Party has filed appropriate UCC financing statements against the applicable Third Party Franchisee evidencing the consignment arrangement between such Loan Party and the applicable Third Party Franchisee with respect to the Inventory consigned by the such Loan Party to the applicable Third Party Franchisee, and has taken all other action required under applicable Requirements of Law to obtain a valid, first priority perfected security interest in such Inventory (including, without limitation, providing notification to other secured parties of the applicable Third Party Franchisee as required by the UCC);
(c)    If requested by Collateral Agent, the applicable Loan Party has provided the Agent with an assignment of the UCC financing statements set forth in clause (b) above;
(d)    The applicable Loan Party has complied with all representations, warranties and covenants set forth herein and in the other Loan Documents relating to federal and state franchise and other regulatory Requirements of Law in connection with the operation of a franchise under one of the Brands as listed on Schedule 7.1 (or any subsequent rebranding of such franchises) by the applicable Third Party Franchisee; and
(e)    The agreements between the applicable Loan Party and the applicable Third Party Franchisee provide that all amounts owed by such Third Party Franchisee to such Loan Party shall be swept at least daily into an account of a Loan Party which is subject to a Control Agreement.
For the purposes of paragraph (a) above, “reasonably cooperate with the Collateral Agent” means that the Third Party Franchisee will, at the Collateral Agent’s expense, (i) give the Collateral Agent and its representatives access during normal business hours to all Inventory consigned by the applicable Loan Party to the Third Party Franchisee, (ii) permit the Collateral Agent and its representatives to take possession and control of the Inventory

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consigned by the applicable Loan Party to the Third Party Franchisee, and to remove the Inventory from the premises of the Third Party Franchisee, (iii) to the extent not prohibited by applicable location occupancy agreements (such as leases), conduct “going out of business sales” and engage in similar activities with respect to the Inventory consigned by the applicable Loan Party to the Third Party Franchisee, and (iv) take all other commercially reasonable actions with respect to the Inventory consigned by the applicable Loan Party to the Third Party Franchisee that, upon Collateral Agent’s request, may be reasonably necessary to permit the Collateral Agent to exercise all of its rights and remedies with respect to the Lien on the Inventory consigned by such Loan Party to the Third Party Franchisee.
Third Party Franchisees” means, as of the Closing Date (or, with respect to the Liberty Parties, as of the Second Amendment Effective Date), the individuals and entities listed in Schedule 1.1 as “third party franchisees”, and thereafter, any additional individual or entity that meets the Third Party Franchisee Eligibility Requirements.
Total Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter or other date of determination of (a) Consolidated Total Debt as of such day, to (b) Consolidated EBITDA for the four-Fiscal Quarter period ending on such date (or if such date of determination is not the last day of a Fiscal Quarter, for the four-Fiscal Quarter period ending as of the most recently concluded Fiscal Quarter).
Trade Announcements” has the meaning specified in Section 10.17.
Tranche A-1 Term Commitment” means, with respect to each Tranche A-1 Term Lender, the commitment of such Tranche A-1 Term Lender to make a Tranche A-1 Term Loan hereunder on the Closing Date, expressed as an amount representing the maximum principal amount of the Tranche A-1 Term Loans to be made by such Tranche A-1 Term Lender hereunder. The amount of each Lender’s Tranche A-1 Term Commitment is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. As of the Closing Date, the aggregate amount of the Tranche A-1 Term Commitments is $375,000,000.
Tranche A-1 Term Lender” means a Lender with an outstanding Tranche A-1 Term Commitment or an outstanding Tranche A-1 Term Loan.
Tranche A-1 Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Tranche A-1 Term Loan of such Lender; provided, that at any time prior to the making of the Tranche A-1 Term Loan, the Tranche A-1 Term Loan Exposure of any Lender shall be equal to such Lender’s Tranche A-1 Term Loan Commitment.
Tranche A-1 Term Loans” means the term loans made by the Lenders on the Closing Date pursuant to Section 2.01(a)(i).
Tranche A-1 Term Note” means a promissory note in the form of Exhibit J-1.
Tranche A-2 Term Commitment” means, with respect to each Tranche A-2 Term Lender, the commitment of such Tranche A-2 Term Lender to make a Tranche A-2 Term Loan hereunder on the Closing Date, expressed as an amount representing the maximum principal amount of the Tranche A-2 Term Loans to be made by such Tranche A-2 Term Lender hereunder. The amount of each Lender’s Tranche A-2 Term Commitment is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. As of the Closing Date, the aggregate amount of the Tranche A-2 Term Commitments is $200,000,000.
Tranche A-2 Term Lender” means a Lender with an outstanding Tranche A-2 Term Commitment or an outstanding Tranche A-2 Term Loan.

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Tranche A-2 Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Tranche A-2 Term Loan of such Lender; provided, that at any time prior to the making of the Tranche A-2 Term Loan, the Tranche A-2 Term Loan Exposure of any Lender shall be equal to such Lender’s Tranche A-2 Term Loan Commitment.
Tranche A-2 Term Loans” means the term loans made by the Lenders on the Closing Date pursuant to Section 2.01(a)(ii).
Tranche A-2 Term Note” means a promissory note in the form of Exhibit J-2.
Transaction Costs” means the fees, costs, and expenses payable by the Loan Parties in connection with the transactions contemplated by the Loan Documents, the Acquisition Agreement, and the repayment of Existing Indebtedness.
Transactions” means the transactions contemplated by the Acquisition Agreement, and the Loan Documents, including without limitation, (i) the consummation of the Acquisition, (ii) the execution and delivery of the Loan Documents, the creation of the Liens pursuant to the Collateral Documents and the initial borrowing of the Term Loan on the Closing Date, (iii) the repayment of Existing Indebtedness, and (iv) the payment of Transaction Costs.
Treasury Rate” shall mean a rate per annum (computed on the basis of actual days elapsed over a year of 365 days) determined by the Administrative Agent on the date three Business Days prior to the date of repayment, prepayment, refinancing or replacement of the principal amount of the Loan described in Section 2.12(b)(i), to be the yield expressed as a rate listed in The Wall Street Journal (or other information sources the Administrative Agent reasonably deems appropriate) for United States Treasury securities having a term to maturity closest to the then remaining term to the second anniversary of the Closing Date.
Type of Loan” means a Base Rate Loan or a LIBOR Rate Loan.
UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
Ultimate Parent” means Franchise Group, Inc., a Delaware corporation.
Vitamin Holdings” means Valor Acquisition, LLC, a Delaware limited liability company.
“Vitamin Intermediate Parent” means Franchise Group Newco V, LLC, a Delaware limited liability company.
Vitamin Top Parent” means Franchise Group Intermediate V, LLC, a Delaware limited liability company.
Waivable Mandatory Prepayment” has the meaning specified in Section 2.14(b).
Wholly Owned Subsidiary” shall mean, as to any person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) is at the time owned by such person and/or one or more Wholly Owned Subsidiaries of such person, and (b) any partnership, association, joint venture, limited liability company, or other entity in which such person and/or one or more Wholly Owned Subsidiaries of such person have a 100% equity interest at such time. Notwithstanding the foregoing, Liberty/Revolution Top Parent shall be deemed a Wholly Owned Subsidiary of the Borrower so long as the only equity interests of Liberty/Revolution Top Parent that are not owned by the Borrower (or another Wholly Owned Subsidiary of the Borrower) are the Equity Grant.
Workers Comp L/C” means letter of credit number 68087802 issued on October 25, 2012 (as amended or replaced by a new or additional letter of credit from time to time) by Bank of America, N.A. for the benefit of ACE American Insurance Company.

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Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Section 1.02    Accounting and Other Terms.
(a)    All accounting terms not specifically defined herein shall be construed in accordance with GAAP; provided, that if Lead Borrower notifies Agents that Lead Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision (or if either Agent notifies Lead Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then Agents and Lead Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of Lenders and Lead Borrower after such Accounting Change conform as nearly as possible to their respective positions immediately before such Accounting Change took effect and, until any such amendments have been agreed upon and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred. When used herein, the term “financial statements” shall include the notes and schedules thereto. Notwithstanding anything to the contrary contained herein, all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards Board’s Accounting Standards Codification Topic 825 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof.
(b)    Any terms used in this Agreement that are defined in the UCC shall be construed and defined as set forth in the UCC as in effect from time to time in the State of New York unless otherwise defined herein; provided, that to the extent that the UCC is used to define any term herein and such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern.
(c)    All terms used in this Agreement which are defined in Article 8 or Article 9 of the UCC as in effect from time to time in the State of New York 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 UCC 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 Collateral Agent may otherwise determine.
Section 1.03    Construction. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations or Guaranteed Obligations shall mean (a) the payment or repayment in full in immediately available funds of (i) the principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, (ii) all costs, expenses, or indemnities payable pursuant to Section 10.02 or 10.03 of this Agreement that have accrued and are

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unpaid regardless of whether demand has been made therefor, and (iii) all fees or charges that have accrued hereunder or under any other Loan Document and are unpaid, (b) the receipt by Collateral Agent of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to an Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses), such cash collateral to be in such amount as Agents reasonably determine is appropriate to secure such contingent Obligations, (c) the payment or repayment in full in immediately available funds of all other outstanding Obligations (other than contingent reimbursement and indemnification obligations for which a claim has not been asserted), and (d) the termination of all of the Commitments of Lenders. Notwithstanding anything in the Agreement to the contrary, (y) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, or directives thereunder or issued in connection therewith and (z) 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 enacted, adopted, issued, phased in, or effective after the date of this Agreement regardless of the date enacted, adopted, issued, phased in, or effective.
Section 1.04    Time References. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to time of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New York, New York on such day. For purposes of the computation of a period of time from a specified date to a later specified date, unless otherwise expressly provided, the word “from” means “from and including” and the words “to” and “until” each means “to and including;” provided, that with respect to computation of fees or interest payable to any Agent or any Lender, such period shall in any event consist of at least one full day.
Section 1.05    Effect of Benchmark Transition Event.
(a)    Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, Administrative Agent and Lead Borrower may amend this Agreement to replace the Adjusted LIBOR Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all Lenders and Lead Borrower so long as Administrative Agent has not received, by such time, written notice of objection to such amendment from Collateral Agent or Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Collateral Agent and Lenders comprising the Required Lenders have delivered to Administrative Agent written notice that the Collateral Agent and such Required Lenders accept such amendment. No replacement of the Adjusted LIBOR Rate with a Benchmark Replacement pursuant to this Section 1.05 will occur prior to the applicable Benchmark Transition Start Date.
(b)    Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(c)    Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify Lead Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Administrative Agent or Lenders pursuant to this Section titled “Effect of Benchmark Transition Event,” 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

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refrain from taking any action, 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 hereto, except, in each case, as expressly required pursuant to this Section titled “Effect of Benchmark Transition Event.”
(d)    Benchmark Unavailability Period. Upon Lead Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, Lead Borrower may revoke any request for a borrowing of LIBOR Rate Loans, conversion to or continuation of LIBOR Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, Lead Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period, the component of the Alternate Base Rate based upon the Adjusted LIBOR Rate will not be used in any determination of the Alternate Base Rate.
(e)    Certain Defined Terms. As used in this Section titled “Effect of Benchmark Transition Event”:
(i)    Benchmark Replacement” means the sum of: (A) the alternate benchmark rate (which may include Term SOFR) that has been selected by Administrative Agent and Lead Borrower giving due consideration to (x) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the Adjusted LIBOR Rate for U.S. dollar-denominated syndicated credit facilities and (B) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.
(ii)    Benchmark Replacement Adjustment” means, with respect to any replacement of the Adjusted LIBOR Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, 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 Administrative Agent and Lead 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 the Adjusted LIBOR Rate 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 the Adjusted LIBOR Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.
(iii)    Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if any Agent decides that adoption of any portion of such market practice is not administratively feasible or if any Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).
(iv)    Benchmark Replacement Date” means the earlier to occur of the following events with respect to the Adjusted LIBOR Rate:
(A)    in the case of clause (A) or (B) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBOR Rate permanently or indefinitely ceases to provide the LIBOR Rate; or

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(B)    in the case of clause (C) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
(v)    Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBOR Rate:
(A)    a public statement or publication of information by or on behalf of the administrator of the LIBOR Rate announcing that such administrator has ceased or will cease to provide the LIBOR Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate;
(B)    a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBOR Rate, a resolution authority with jurisdiction over the administrator for the LIBOR Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBOR Rate, which states that the administrator of the LIBOR Rate has ceased or will cease to provide the LIBOR Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate; or
(C)    a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate is no longer representative.
(vi)    Benchmark Transition Start Date” means (A) in the case of a Benchmark Transition Event, the earlier of (x) the applicable Benchmark Replacement Date and (y) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (B) in the case of an Early Opt-in Election, the date specified by Administrative Agent or the Required Lenders, as applicable, by notice to Lead Borrower, Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.
(vii)    Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Adjusted LIBOR Rate (or the LIBOR Rate component thereof) and solely to the extent that the Adjusted LIBOR Rate has not been replaced with a Benchmark Replacement, the period (A) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the Adjusted LIBOR Rate for all purposes hereunder in accordance with the Section titled “Effect of Benchmark Transition Event” and (B) ending at the time that a Benchmark Replacement has replaced the Adjusted LIBOR Rate for all purposes hereunder pursuant to the Section titled “Effect of Benchmark Transition Event.”
(viii)    Early Opt-in Election” means the occurrence of:
(A)    (x) a determination by Administrative Agent or (y) a notification by the Required Lenders to Administrative Agent (with a copy to Lead Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in this Section titled “Effect of Benchmark Transition Event,” are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Adjusted LIBOR Rate, and
(B)    (x) the election by Administrative Agent or (y) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by Administrative Agent of written notice of such election to Lead Borrower and the Lenders or by the Required Lenders of written notice of such election to Administrative Agent.

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(ix)    Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
(x)    Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
(xi)    SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.
(xii)    Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
(xiii)    Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
Section 1.06    Fiscal Periods. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to a fiscal month, Fiscal Quarter or Fiscal Year ending on a certain date shall be deemed to refer to the fiscal month, Fiscal Quarter or Fiscal Year, respectively, ending on or closest to such date; provided that this Section 1.06 shall not apply to any references to fiscal months, fiscal quarters or fiscal years that are expressly stated to relate to any Person other than a Loan Party.

ARTICLE II
LOANS

Section 2.01    Term Loans.
(a)    Loan Commitments.
(i)    Subject to the terms and conditions hereof, each Tranche A-1 Term Lender severally agrees to make, on the Closing Date, a Tranche A-1 Term Loan to Lead Borrower for the account of the Borrowers or to any other Borrower designated by the Lead Borrower in an amount equal to such Lender’s Tranche A-1 Term Commitment.
(ii)    Subject to the terms and conditions hereof, each Tranche A-2 Term Lender severally agrees to make, on the Closing Date, a Tranche A-2 Term Loan to Lead Borrower for the account of the Borrowers in an amount equal to such Lender’s Tranche A-2 Term Commitment.
Lead Borrower may only request one borrowing under the Term Loan Commitment which shall be on the Closing Date. Any amount borrowed under this Section 2.01(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Section 2.11 and Section 2.12, all amounts owed hereunder with respect to the Term Loan shall be paid in full no later than the Maturity Date. Each Lender’s Term Loan Commitment shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Term Loan Commitment on such date.
(b)    Borrowing Mechanics for Term Loans.
(i)    Lead Borrower shall deliver to Administrative Agent a fully executed Funding Notice no later than (A) if such Funding Notice requests a LIBOR Rate Loan, three (3) Business Days prior to the Closing Date or (B) if such Funding Notice requests a Base Rate Loan, two (2) Business Days prior to the Closing Date,

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or, in each case, such later date as Administrative Agent may agree. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Lead Borrower shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing. Administrative Agent and Lenders (A) may act without liability upon the basis of written, facsimile, or telephonic notice believed by Administrative Agent in good faith to be from Lead Borrower (or from any Authorized Officer thereof designated in writing purportedly from Lead Borrower to Administrative Agent), (B) shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Term Loan on behalf of Lead Borrower until Administrative Agent receives written notice to the contrary, and (C) shall have no duty to verify the authenticity of the signature appearing on any written Funding Notice.
(ii)    Each Lender shall make its Term Loan available to Administrative Agent not later than noon (New York time) on the Closing Date, by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office (as identified on Appendix B). Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Term Loans available to Lead Borrower by the close of business on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited (A) in the case of Loans made on the Closing Date, in accordance with the provisions of the Flow of Funds Agreement or (B) after the Closing Date, to the account of Lead Borrower at Administrative Agent’s Principal Office or to such other account as may be designated in writing to Administrative Agent by Lead Borrower.
Section 2.02    [Reserved].
Section 2.03    Protective Advances. Subject to the limitations set forth below, and whether or not an Event of Default or a Default shall have occurred and be continuing, each Agent is authorized by the Loan Parties and Lenders, from time to time in such Agent’s sole discretion (but such Agent shall have absolutely no obligation to), to make disbursements or advances to the Loan Parties, which such Agent, in its sole discretion, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (c) to pay any other amount chargeable to, or required to be paid by, the Loan Parties pursuant to the terms of this Agreement and the other Loan Documents, including, without limitation, payments of principal, interest, fees, and reimbursable expenses (any of such Loans are in this clause (c) referred to as “Protective Advances”). Protective Advances may be made even if the conditions precedent set forth in Article III have not been satisfied. The interest rate on all Protective Advances shall be at the Alternate Base Rate plus the Applicable Margin for the Tranche A-2 Term Loans. Protective Advances shall not exceed $5,000,000 in the aggregate at any time without the prior written consent of Required Lenders. Each Protective Advance shall be secured by the Liens in favor of Collateral Agent in and to the Collateral and shall constitute Obligations hereunder. The Protective Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 2.15(f). Borrower shall pay the unpaid principal amount and all unpaid and accrued interest of each Protective Advance on the earlier of the Maturity Date and the date that is three (3) Business Days following the date on which demand for payment is made by the applicable Agent. The applicable Agent shall notify each Lender and Lead Borrower in writing of each such Protective Advance, which notice shall include a description of the purpose of such Protective Advance. Without limitation to its obligations pursuant to Section 9.06, each Lender agrees that it shall make available to the applicable Agent, upon such Agent’s demand, in Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Protective Advance. If such funds are not made available to the applicable Agent by such Lender, such 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 applicable Agent, at the Federal Funds Effective Rate for three (3) Business Days and thereafter at the Alternate Base Rate.

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Section 2.04    Pro Rata Shares; Availability of Funds.
(a)    Pro Rata Shares. All Loans shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder, nor shall any Term Loan Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder.
(b)    Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the Closing Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on the Closing Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on the Closing Date, and Administrative Agent may, with the consent of the Required Lenders, but shall not be obligated to, make available to Lead Borrower a corresponding amount on the Closing Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from the Closing Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Alternate Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Lead Borrower, and Lead Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from the Closing Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Loans. Nothing in this Section 2.04(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.
Section 2.05    Use of Proceeds. The proceeds of the Term Loans made on the Closing Date shall be applied by the Loan Parties (i) to consummate the Transactions (including, without limitation, to pay the Transaction Costs), (ii) to repay the Existing Indebtedness, and/or (iii) for general corporate purposes. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or could reasonably be expected to cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U, or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.
Section 2.06    Evidence of Debt; Register; Lenders’ Books and Records; Term Notes.
(a)    Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of the Borrowers to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on the Borrowers, absent manifest error; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect Borrowers’ Obligations in respect of any applicable Loans; provided further, that in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

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(b)    Register. Administrative Agent shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and the principal amount of the Loans (and stated interest therein) of each Lender from time to time (the “Register”). The Register shall be available for inspection by Borrower at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record in the Register the Loans, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on the Borrowers and each Lender, absent manifest error; provided, that failure to make any such recordation, or any error in such recordation, shall not affect Borrowers’ Obligations in respect of any Loan. Each Borrower hereby designates the entity serving as Administrative Agent to serve as each Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.06, and Borrower hereby agrees that, to the extent such entity serves in such capacity, the entity serving as Administrative Agent and its officers, directors, employees, agents, and affiliates shall constitute “Indemnitees.”
(c)    Term Notes. If so requested by any Lender by written notice to Lead Borrower (with a copy to Administrative Agent) at least two (2) Business Days prior to the Closing Date, or at any time thereafter, each Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.06) on the Closing Date or promptly thereafter (or, if such notice is delivered after the Closing Date, promptly after Lead Borrower’s receipt of such notice) a Tranche A-1 Term Note and/or a Tranche A-2 Term Note.
Section 2.07    Interest.
(a)    Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
(i)    if a Base Rate Loan, at the Alternate Base Rate plus the Applicable Margin.
(ii)    if a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus the Applicable Margin.
(b)    The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any LIBOR Rate Loan, shall be selected by Lead Borrower and notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be. If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
(c)    In connection with LIBOR Rate Loans there shall be no more than five Interest Periods outstanding at any time. In the event Lead Borrower fails to specify between a Base Rate Loan or a LIBOR Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as a LIBOR Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the event Lead Borrower fails to specify an Interest Period for any LIBOR Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, Lead Borrower shall be deemed to have selected an Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive, and binding upon all parties) the interest rate that shall apply to the LIBOR Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof to Lead Borrower and each Lender.

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(d)    Interest payable pursuant to Section 2.07(a) shall be computed on the basis of a 360-day year and actual days elapsed, other than for Base Rate Loans which shall be calculated on the basis of a 365-day or 366-day year, as applicable, and actual days elapsed. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR Rate Loan, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate Loan, the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the case may be, shall be excluded; provided, that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
(e)    Except as otherwise set forth herein, interest on each Loan shall be payable in cash and in arrears on and to (i) each Interest Payment Date applicable to that Loan, (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid, and (iii) at maturity, including final maturity.
(f)    At any time that an Event of Default has occurred and is continuing, at the written election of any Agent or the Required Lenders, Lead Borrower no longer shall have the option to request that any portion of the Term Loan bear interest at a rate based upon the Adjusted LIBOR Rate.
Section 2.08    Conversion/Continuation.
(a)    Subject to Section 2.17 and so long as no Default or Event of Default shall have occurred and then be continuing, Lead Borrower shall have the option:
(i)    to convert at any time all or any part of any Term Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount from one Type of Loan to another Type of Loan; provided, that a LIBOR Rate Loan may only be converted on the expiration of the Interest Period applicable to such LIBOR Rate Loan unless the Loan Parties pay all amounts due under Section 2.17 in connection with any such conversion, or
(ii)    upon the expiration of any Interest Period applicable to any LIBOR Rate Loan, to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount as a LIBOR Rate Loan.
(b)    Lead Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than noon (New York time) at least two Business Days in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three (3) Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a LIBOR Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBOR Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Lead Borrower shall be bound to effect a conversion or continuation in accordance therewith.

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Section 2.09    Default Interest. Upon the occurrence and during the continuance of an Event of Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), payable on demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided, that in the case of LIBOR Rate Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective, such LIBOR Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.09 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Agent or any Lender.
Section 2.10    Fees.
(a) After the Liberty Trigger Date, if the Liberty Joinder Date has not occurred, the Borrower agrees to pay to the Administrative Agent for the account of each Lender a ticking fee (the “Liberty Ticking Fee”) in dollars at a rate per annum equal to 100 basis points, increasing by 15 basis points every 15th day after the Closing Date, until the Liberty Joinder Date, of the aggregate principal amount of the Loans, payable monthly in arrears on the last Business Day of each fiscal month, commencing on the first such date to occur after the Closing Date, calculated based upon the actual number of days elapsed over a 360-day year, accruing beginning on the Closing Date to but excluding the Liberty Joinder Date. The Liberty Ticking Fee shall be distributed each Lender in accordance with such Lender’s Pro Rata Share.
(a)    [Reserved].
(b)    Without duplication of any other fees set forth in this Section 2.10, the Borrowers agree to pay to Administrative Agent all fees payable by it in the Fee Letter in the amounts and at the times specified therein. The Fee Letter shall survive the termination of this Agreement until all Obligations are paid in full (other than contingent reimbursement and indemnification obligations for which a claim has not been asserted)
Section 2.11    Repayments of Loans and Commitment Reductions. The principal amounts of the Term Loans shall be repaid in equal quarterly installments (each, an “Installment”) on the last day of each Fiscal Quarter (each, an “Installment Date”), each in an amount equal to $6,250,000, commencing on June 30, 2020, with any outstanding principal amounts due and payable on the earlier of (a) the Maturity Date and (b) the date on which the Term Loans otherwise become due and payable in full pursuant to the terms of this Agreement. Notwithstanding the foregoing, (i) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term Loan in accordance with Sections 2.12 and 2.13, as applicable, and (ii) the Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Maturity Date. The full amount of each Installment shall be applied to the Tranche A-1 Term Loans until paid in full and thereafter to the Tranche A-2 Term Loans until paid in full.
Section 2.12    Voluntary Prepayments.
(a)    Voluntary Prepayments.
(i)    Any time and from time to time:
(A)    with respect to Base Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount (or such lesser amount outstanding), and

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(B)    with respect to LIBOR Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part (together with any amounts due pursuant to Section 2.17(c)) in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount (or such lesser amount outstanding).
(ii)    All such prepayments shall be made:
(A)    upon not less than one Business Day’s prior written or telephonic notice in the case of Base Rate Loans, and
(B)    upon not less than three (3) Business Days’ prior written notice in the case of LIBOR Rate Loans, in each case given to Administrative Agent by 10:00 a.m. (New York time) on the date required (and Administrative Agent will promptly transmit such notice for Term Loans to each Lender). Upon the giving of any such notice, unless such notice is expressly conditioned on the occurrence of another transaction, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in Section 2.14(a).
(b)    Call Protection.
(i)     If all or any part of the principal balance of any Term Loan is paid on or prior to the third anniversary of the Closing Date for any reason (including, but not limited to, whether voluntary or mandatory (other than, for the avoidance of doubt, required amortization payments pursuant to Section 2.11 and mandatory prepayments required pursuant to Sections 2.13(e) and certain prepayments pursuant to the provisions of Section 2.13(g)), and whether before or after acceleration of the Obligations or the commencement of any Insolvency Proceeding, but in any event (A) including any such prepayment in connection with (I) a Change of Control, (II) an acceleration of the Obligations as a result of the occurrence of an Event of Default, (III) foreclosure and sale of, or collection of, the Collateral, (IV) sale of the Collateral in any Insolvency Proceeding, (V) the restructure, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, or (VI) the termination of this Agreement for any reason, and (B) excluding any prepayment that is required to be made pursuant to the provisions of Sections 2.11, 2.13(e) and certain prepayments pursuant to the provisions of 2.13(g) hereof), Borrowers shall pay to Administrative Agent, for the benefit of all Lenders entitled to a portion of such prepayment a premium as liquidated damages and compensation for the costs of being prepared to make funds available hereunder with respect to the Loans (the “Applicable Prepayment Premium”) equal to (1) with respect to prepayments made on or after the Closing Date but prior to the first anniversary of the Closing Date, the Make-Whole Premium or (2) thereafter, the amount of such prepayment multiplied by (x) two percent (2%), with respect to prepayments made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, (y) one percent (1%), with respect to prepayments made after the second anniversary of the Closing Date but on or prior to the third anniversary of the Closing Date, and (z) zero percent (0%), with respect to prepayments made after the third anniversary of the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, to the extent that any Non-Consenting Lender is replaced pursuant to Section 2.22 due to such Lender’s failure to approve a consent, waiver, or amendment, such Non-Consenting Lender, as the case maybe, shall be entitled to receive the Applicable Prepayment Premium in connection with such replacement or prepayment in the amount that would have been payable in respect of the Term Loans of such Non-Consenting Lender, as applicable, under this clause (b)(i) had such Term Loans been the subject of a voluntary prepayment at such time; provided, that after any such payment of the Applicable Prepayment Premium to such Non-Consenting Lender pursuant to this sentence, the Applicable Prepayment Premium with respect to that portion of the Term Loans shall be deemed fully satisfied, and notwithstanding anything to the contrary in this clause (b), the Borrower shall not be required to pay any additional premium on or after such date with respect to that portion of the Term Loans.

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(ii)    Without limiting the generality of the foregoing, it is understood and agreed that if the Obligations are accelerated prior to the third anniversary of the Closing Date for any reason, including because of default, the commencement of any Insolvency Proceeding or other proceeding pursuant to any applicable debtor relief laws, sale, disposition, or encumbrance (including that by operation of law or otherwise), the Applicable Prepayment Premium, determined as of the date of acceleration, will also be due and payable as though said Obligations were voluntarily prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. The Applicable Prepayment Premium payable in accordance with the immediately preceding sentence shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination, and Borrowers agree that it is reasonable under the circumstances. The Applicable Prepayment Premium shall also be payable in the event the Obligations (and/or this Agreement or the Term Notes evidencing the Obligations) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure, or by any other means. BORROWERS EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Borrower expressly agrees that: (A) the Applicable Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Applicable Prepayment 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 Lenders and Borrower giving specific consideration in this transaction for such agreement to pay the Applicable Prepayment Premium, and (D) Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrower expressly acknowledges that its agreement to pay the Applicable Prepayment Premium as herein described is a material inducement to the Lenders to provide the Commitments and make the Loans.
(iii)    After the third anniversary of the Closing Date, no premiums shall be payable pursuant to this Section 2.12(b) in connection with any prepayments of the Term Loans other than LIBOR funding breakage costs as required under the terms of this Agreement.
Section 2.13    Mandatory Prepayments.
(a)    Asset Sales. No later than the fifth Business Day following the date of receipt by any Loan Party or any of its Subsidiaries of any Net Proceeds from Asset Sales (other than any Asset Sale of the type described in Section 6.09(a) through Section 6.09(d) or Section 6.09(f) through Section 6.09(o)), Lead Borrower shall prepay the Loans as set forth in Section 2.14(a) in an aggregate amount equal to such Net Proceeds; provided, that so long as (i) no Default or Event of Default shall have occurred and be continuing as of the date of such Asset Sale, (ii) Lead Borrower has delivered Administrative Agent prior written notice of Lead Borrower’s intention to apply such monies (the “Reinvestment Amounts”) to the costs of replacement of the properties or assets that are the subject of such sale or disposition or the cost of purchase or construction of other assets useful in the business of the Loan Parties or their Subsidiaries reinvested within twelve (12) months (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within twelve (12) months following receipt thereof), following the date of such Asset Sale, (iii) the monies are held in a Deposit Account in which Collateral Agent has a perfected first-priority security interest, and (iv) the Loan Parties and their Subsidiaries complete such replacement, purchase, or construction within 12 months after the initial receipt of such monies (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within twelve (12) months following receipt thereof), the Loan Parties and their Subsidiaries shall have the option to apply such monies, in an aggregate amount not to exceed $1,250,000 in any Fiscal Year, so long as no Default or Event of Default shall have occurred and be continuing, to the costs of replacement of the assets that are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of the Loan Parties and their Subsidiaries unless and to the extent that such applicable period shall have expired without such replacement, purchase, or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be paid to Administrative Agent and applied in accordance with Section 2.14(a); provided further that, notwithstanding the foregoing proviso, all Net Proceeds from

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Refranchising Activity, any disposition of any of the Existing Businesses or a majority of the Capital Stock of any of the Existing Businesses or any store liquidation shall be applied in accordance with Section 2.14(a). Nothing contained in this Section 2.13(a) shall permit the Loan Parties or any of their Subsidiaries (other than the Excluded Entities) to sell or otherwise dispose of any assets other than in accordance with Section 6.09.
(b)    Insurance/Condemnation Proceeds. No later than the fifth Business Day following the date of receipt by any Loan Party or any of its Subsidiaries, or Collateral Agent as lender loss payee, of any Net Proceeds from insurance or any condemnation, taking, or other casualty, Lead Borrower shall prepay the Loans in an aggregate amount equal to such Net Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, (ii) Lead Borrower has delivered Administrative Agent prior written notice of Lead Borrower’s intention to apply the Reinvestment Amounts to the costs of replacement of the properties or assets that are the subject of such condemnation, taking, or other casualty or the cost of purchase or construction of other assets useful in the business of the Loan Parties or their Subsidiaries reinvested within twelve (12) months (or within 18 (eighteen) months following receipt thereof if a contractual commitment to reinvest is entered into within twelve (12) months following receipt thereof) following the date of the receipt of such Net Proceeds, (iii) the monies are held in a Deposit Account in which Collateral Agent has a perfected first-priority security interest, and (iv)  the Loan Parties and their Subsidiaries complete such replacement, purchase, or construction within twelve (12) months after the initial receipt of such monies (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within twelve (12) months following receipt thereof), the Loan Parties and their Subsidiaries shall have the option to apply such monies, in an aggregate amount not to exceed $2,500,000 in any Fiscal Year, to the costs of replacement of the assets that are the subject of such condemnation, taking, or other casualty or the costs of purchase or construction of other assets useful in the business of the Loan Parties and their Subsidiaries unless and to the extent that such applicable period shall have expired without such replacement, purchase, or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be paid to Administrative Agent and applied in accordance with Section 2.14(a).
(c)    Issuance of Equity Securities. On the date of receipt by any of the Loan Parties of Cash proceeds of Curative Equity, Lead Borrower shall prepay the Loans as set forth in Section 2.14(a) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses.
(d)    Issuance of Debt. On the date of receipt by any Loan Party of any Cash proceeds from the incurrence of any Indebtedness of any Loan Party (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.01), Lead Borrower shall prepay the Loans as set forth in Section 2.14(a) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses.
(e)    Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Quarter (commencing with the first full Fiscal Quarter after the Closing Date), Borrower shall, no later than 60 days after the end of such Fiscal Quarter, prepay the Loans as set forth in Section 2.14(a) in an aggregate amount equal to the sum, if positive, of (A) fifty percent (50%) of Consolidated Excess Cash Flow for such Fiscal Quarter minus (B) the aggregate amount of all voluntary principal prepayments, to the extent actually made, of the Term Loan in accordance with this Agreement during such Fiscal Quarter (the sum of (A) and (B), the “ECF Payment Amount”).
(f)    [Reserved].

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(g)    Extraordinary Receipts and Refranchising. On the date of receipt by any Loan Party or any of its Subsidiaries of (i)  any Extraordinary Receipts or (ii) any Net Proceeds attributable to any Refranchising Activity by a Loan Party or any of its Subsidiaries, Lead Borrower shall prepay or cause to be prepaid Loans as set forth in Section 2.14(a) in the amount of such Extraordinary Receipts or Net Proceeds, as applicable; provided that, in the case of any Extraordinary Receipts not exceeding $1,250,000 in any Fiscal Year, if the Lead Borrower delivers to the Administrative Agent a certificate certifying that no Event of Default has occurred and is continuing on the date of receipt of such Extraordinary Receipts, then no prepayment pursuant to this Section 2.13(g) shall be required in respect of such Extraordinary Receipts; provided further that up to $50,000,000 relating to Refranchising Activity under clause (ii) by any Loan Party and its Subsidiaries shall not be subject to the payment of call protection under Section 2.12(b).
(h)    [Reserved].
(i)    Excluded Entity Limitations. Mandatory prepayments from Excluded Entities’ Net Proceeds or Extraordinary Receipts shall not be required to the extent the loan documentation governing Indebtedness for borrowed money of such Excluded Entities restricts either the prepayment of the Obligations with such Net Proceeds or Extraordinary Receipts or the distribution or transfer of such Net Proceeds or Extraordinary Receipts to Loan Parties to enable the Loan Parties to prepay the Obligations, and any such restriction was not entered into in contemplation of the relevant transaction.
(j)    Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to Sections 2.13(a) through 2.13(g), Lead Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow and compensation owing to Lenders, if any, under Section 2.12(b). In the event that the actual amount received exceeded the amount set forth in such certificate, Lead Borrower shall promptly make an additional prepayment of the Loans, and Lead Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.
Section 2.14    Application of Prepayments/Reductions.
(a)    Application of Prepayments of Term Loans. (i) Any prepayment of any Term Loan pursuant to Section 2.12 shall be applied (A) first, to the Tranche A-1 Term Loans until paid in full and (B) second, to the Tranche A-2 Term Loans until paid in full, in each case, as directed by the Lead Borrower (and absent such direction, in direct order of maturity thereof), and (ii) any mandatory prepayment of any Loan pursuant to Section 2.13 shall be applied (A) first, (x) with respect to mandatory prepayments made prior to the first anniversary of the Closing Date, to the Tranche A-1 Term Loans, ratably in inverse order of maturity thereof until paid in full and (y) with respect to mandatory prepayments made on or after the first anniversary of the Closing Date, to the Tranche A-1 Term Loans ratably in the inverse order of maturity thereof until paid in full and (B) second, to the Tranche A-2 Term Loans to the installments due thereunder (including at maturity) on pro rata basis until paid in full.
(b)    Waivable Mandatory Prepayment. Anything contained herein to the contrary notwithstanding, in the event the Loan Parties are required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Term Loans, not less than three (3) Business Days prior to the date (the “Required Prepayment Date”) on which the Loan Parties are required to make such Waivable Mandatory Prepayment, Lead Borrower shall notify Administrative Agent of the amount of such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loan of the amount of such Lender’s Pro Rata Share of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to Lead Borrower and Administrative Agent of its election to do so, or if it elects not to do so and other Lenders elect to exercise such option, if it elects to receive its pro rata share of the portion of such Waivable Mandatory Prepayment that such other Lenders have elected to refuse, in each case on or before the first Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify Lead Borrower and Administrative Agent of its election to exercise such option

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on or before the first Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option to refuse such Waivable Mandatory Prepayment and not to exercise the option to receive its pro rata share of the portion of such Waivable Mandatory Prepayment that other Lenders have elected to refuse, if any). On the Required Prepayment Date, Lead Borrower shall pay to Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied (i) in an amount equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such option to refuse such Waivable Mandatory Prepayment, to prepay the Term Loans of such Lenders (which prepayment shall be applied to the scheduled Installments of principal of the Term Loan in accordance with Section 2.14(a)), (ii) to the extent of any excess, ratably to Lenders that have elected to receive the portion of such Waivable Mandatory Prepayment that such other Lenders have elected to refuse, until paid in full (which prepayment shall be applied to the scheduled Installments of principal of the Term Loan in accordance with Section 2.14(a)), and (iii) to the extent of any excess, to Lead Borrower for working capital and general corporate purposes.
(c)    At any time an Application Event has occurred and is continuing, all payments shall be applied pursuant to Section 2.15(g). Nothing contained herein shall modify the provisions of Section 2.10(b) or Section 2.15(b) regarding the requirement that all prepayments be accompanied by accrued interest and fees on the principal amount being prepaid to the date of such prepayment, or any requirement otherwise contained herein to pay all other amounts as the same become due and payable.
Section 2.15    General Provisions Regarding Payments.
(a)    All payments by a Borrower of principal, interest, fees, and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff, or counterclaim, free of any restriction or condition, and delivered to Administrative Agent, for the account of Lenders, not later than noon (New York time) to Administrative Agent’s Account; funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by a Borrower on the next Business Day.
(b)    All payments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid and all other amounts payable with respect to the principal amount being repaid or prepaid.
(c)    Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Administrative Agent.
(d)    Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBOR Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(e)    Subject to the provisos set forth in the definition of “Interest Period,” whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of the payment of interest hereunder.
(f)    Administrative Agent shall deem any payment by or on behalf of a Borrower hereunder that is not made in same day funds prior to noon (New York time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds and (ii) the applicable next Business Day. Administrative Agent shall give prompt notice to Lead Borrower and each applicable Lender if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.01(a). Interest shall

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continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Default Rate determined pursuant to Section 2.09 from the date such amount was due and payable until the date such amount is paid in full.
(g)    At any time an Application Event has occurred and is continuing, or the maturity of the Obligations shall have been accelerated pursuant to Section 8.01, all payments or proceeds received by any Agent hereunder or under any Collateral Document in respect of any of the Obligations, including, but not limited, to all proceeds received by any Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral, shall be applied in full or in part as follows:
(i)    first, ratably to pay the Obligations in respect of any fees (other than the Applicable Prepayment Premium), expense reimbursements, indemnities, and other amounts then due and payable to the Agents until paid in full,
(ii)    second, ratably to pay interest then due and payable in respect of Protective Advances until paid in full,
(iii)    third, ratably to pay principal of Protective Advances then due and payable until paid in full,
(iv)    fourth, ratably to pay the Obligations in respect of the Applicable Prepayment Premium then due and payable to Lenders with a Term Loan until paid in full, and
(v)    fifth, to the ratable payment of all other Obligations then due and payable until paid in full.
(h)    For purposes of Section 2.15(g) “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 any interest that accrues after the commencement of an Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, regardless of whether the same would be or is allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding.
(i)    In the event of a direct conflict between the priority provisions of Section 2.15(g) 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 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 2.15(g) shall control and govern.
Section 2.16    Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action, or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees, and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion

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to the Aggregate Amounts Due to them; provided, that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Each Loan Party expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off, or counterclaim with respect to any and all monies owing by such Loan Party to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.
Section 2.17    Making or Maintaining LIBOR Rate Loans.
(a)    Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such LIBOR Rate Loans on the basis provided for in the definition of Adjusted LIBOR Rate, Administrative Agent shall on such date give notice to Lead Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, LIBOR Rate Loans until such time as Administrative Agent notifies Lead Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Lead Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Lead Borrower.
(b)    Illegality or Impracticability of LIBOR Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Lead Borrower and Administrative Agent) that the making, maintaining, or continuation of its LIBOR Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline, or order (or would conflict with any such treaty, governmental rule, regulation, guideline, or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender,” and it shall on that day give notice (by facsimile or by telephone confirmed in writing) to Lead Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter, (A) the obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (B) to the extent such determination by the Affected Lender relates to a LIBOR Rate Loan then being requested by Lead Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (C) the Affected Lender’s obligation to maintain its outstanding LIBOR Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (D) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a LIBOR Rate Loan then being requested by Lead Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, Lead Borrower shall have the option, subject to the provisions of Section 2.17(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.17(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, LIBOR Rate Loans in accordance with the terms hereof.

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(c)    Compensation for Breakage or Non-Commencement of Interest Periods. Lead Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amounts), for all reasonable losses, expenses, and liabilities (including any interest paid or calculated to be due and payable by such Lender to lenders of funds borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense, or liability sustained by such Lender in connection with the liquidation or reemployment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any LIBOR Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any LIBOR Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation, (ii) if any prepayment or other principal payment of, or any conversion of, any of its LIBOR Rate Loans occurs on any day other than the last day of an Interest Period applicable to that Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise), or (iii) if any prepayment of any of its LIBOR Rate Loans is not made on any date specified in a notice of prepayment given by Lead Borrower.
(d)    Booking of LIBOR Rate Loans. Any Lender may make, carry, or transfer LIBOR Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
(e)    Assumptions Concerning Funding of LIBOR Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.17 and under Section 2.18 shall be made as though such Lender had actually funded each of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit bearing interest at the rate obtained pursuant to clause (a)(i) of the definition of Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, that each Lender may fund each of its LIBOR Rate Loans in any manner it sees fit, and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.17 and under Section 2.18.
Section 2.18    Increased Costs.
(a)    Compensation For Increased Costs and Taxes. Subject to the provisions of Section 2.19 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty, or governmental rule, regulation, or order, or any change therein or in the interpretation, administration, or application thereof (including the introduction of any new law, treaty, or governmental rule, regulation, or order), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request, or directive issued or made after the date hereof by any central bank or other governmental or quasi-Governmental Authority (whether or not having the force of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than Indemnified Tax or any Tax described under clauses (ii) through (iv) of Section 2.19(a)) with respect to this Agreement or any of the other Loan Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amounts payable hereunder, (ii) imposes, modifies, or holds applicable any reserve (including any marginal, emergency, supplemental, special, or other reserve), special deposit, compulsory loan, FDIC insurance, or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to LIBOR Rate Loans that are reflected in the definition of Adjusted LIBOR Rate), or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making, or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Lead Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate

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of, or a different method of calculating, interest or otherwise as such Lender shall determine in its reasonable discretion) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Lead Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.18(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
Section 2.19    Taxes; Withholding, etc.
(a)    Withholding of Taxes. All sums payable by any Loan Party hereunder and under the other Loan Documents shall (except to the extent required by applicable law) be paid free and clear of, and without any deduction or withholding on account of, any Tax, other than (i) Taxes imposed on or measured by the recipient’s net income (however denominated), franchise Taxes, and branch profits Taxes, imposed on the recipient, in each case, (A) as a result of such recipient being organized under the laws of, having its principal office in, or, in the case of any Lender, its applicable lending office is located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (B) as the result of any 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, or engaged in any other transaction pursuant to, or enforced any, Loan Document, or sold or assigned an interest in any Loan or Loan Document) (Taxes described in this clause (i)(B), “Other Connection Taxes”), (ii) in the case of a Lender, United States federal income withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in effect on the date on which (x) such Lender becomes a party hereto or acquires an interest in the Loan (other than pursuant to an assignment request by a Loan Party under Section 2.22), or (y) such Lender changes its lending office, except that this clause (ii) shall not apply to the extent that, pursuant to this Section 2.19, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such recipient’s failure to comply with Section 2.19(d), and (iv) withholding Taxes imposed under FATCA (all such excluded Taxes, collectively or individually, “Excluded Taxes” and all such non-excluded Taxes, collectively or individually, “Indemnified Taxes”). If any Loan Party or any other Person is required by applicable law to make any deduction or withholding on account of any Indemnified Tax or Other Tax from any sum paid or payable by any Loan Party to any Agent or any Lender under any of the Loan Documents: (1) Lead Borrower shall notify Administrative Agent of any such requirement as soon as reasonably practicable after Lead Borrower becomes aware of it, (2) Lead Borrower shall timely pay any such Tax, (3) the sum payable by such Loan Party shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding, or payment (including any deductions and withholdings applicable to additional sums payable under this Section), such Agent or such Lender, as the case may be, receives on the due date an amount equal to what it would have received had no such deduction, withholding, or payment been required or made, and (4) within thirty days after paying any sum from which it is required by law to make any deduction or withholding, Lead Borrower shall deliver to Administrative Agent the original or a certified copy of a receipt issued by the applicable 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.
(b)    Other Taxes. The Loan Parties shall pay to the relevant Governmental Authorities any present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other 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 2.22) (“Other Taxes”). Within thirty days after paying any such Other Taxes, each Loan Party shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

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(c)    Tax Indemnification. The Loan Parties hereby jointly and severally indemnify and agree to hold each Agent and Lender harmless from and against all Indemnified Taxes and (without duplication) Other Taxes (including, without limitation, Indemnified Taxes and Other Taxes imposed on any amounts payable under this Section 2.19) payable or paid by such Person or required to be withheld or deducted from a payment to such Person and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted by the relevant Governmental Authority. Such indemnification shall be paid within ten (10) days from the date on which any Agent or Lender makes written demand therefor specifying in reasonable detail the nature and amount of such Indemnified Taxes or Other Taxes. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d)    Evidence of Exemption From or Reduction of U.S. Withholding Tax.
(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 a Loan Party and the Administrative Agent, at the time or times reasonably requested by a Loan Party or the Administrative Agent, such properly completed and executed documentation reasonably requested by a Loan Party 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 a Loan Party or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by a Loan Party or the Administrative Agent as will enable a Loan Party 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 paragraphs (ii), (iv) and (v) of this Section) 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)    Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income Tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent (for transmission to Borrower upon Borrower’s written request), on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date such Person becomes a Lender hereunder, and at such other times as may be necessary in the determination of Administrative Agent (in its reasonable exercise of its discretion) or upon the reasonable request of a Loan Party, (i) two original copies of Internal Revenue Service Form W‑8IMY (with appropriate attachments), W-8BEN or W-8BEN-E, or W-8ECI (or any successor forms), as applicable, properly completed and duly executed by such Lender to establish that such Lender is not subject to, or is subject to a reduced rate of, deduction or withholding of United States federal income Tax with respect to any payments to such Lender of principal, interest, fees, or other amounts payable under any of the Loan Documents, and (ii) if such Lender is claiming exemption from United States federal income Tax under Section 871(h) or 881(c) of the Internal Revenue Code, a Certificate Regarding Non-Bank Status, properly completed and duly executed by such Lender. Each Lender required to deliver any forms or certificates with respect to United States federal income Tax withholding matters pursuant to this Section 2.19(d) hereby agrees, from time to time after the initial delivery by such Lender of such forms or certificates, whenever a lapse in time or change in circumstances renders such forms or certificates obsolete or inaccurate in any material respect, that such Lender shall deliver to Administrative Agent (for transmission to Borrower) two new original copies of Internal Revenue Service Form W‑8IMY (with appropriate attachments thereto), W-8BEN or W-8BEN-E, or W-8ECI, as applicable, and, if applicable, a Certificate Regarding Non-Bank Status (or any successor forms), as the case may be, properly completed and duly executed by such Lender, or promptly notify Administrative Agent and Borrower of its inability to deliver any such forms or certificates. Notwithstanding the above, a Non-US Lender shall not be required to deliver any form pursuant to this Section 2.19(d)(ii) that such Non-US Lender is not legally able to deliver.

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(iii)    Any Non-US Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Non-US Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of a Loan Party or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit a Loan Party or the Administrative Agent to determine the withholding or deduction required to be made.
(iv)    If a payment made to a Lender under any Loan Document would be subject to United States 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 Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by a Loan Party or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by a Loan Party or Administrative Agent as may be necessary for the Loan Party and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.19(d)(iv), FATCA shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding the above, a Lender shall not be required to deliver any form or other form of documentation pursuant to this Section 2.19(d)(iv) that such Non-US Lender is not legally able to deliver.
(v)    Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income Tax purposes shall deliver to Administrative Agent (for transmission to Borrower), on or prior to the Closing Date (in the case of each such Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date such Person becomes a Lender hereunder, and at such other times as may be necessary in the determination of Administrative Agent (in its reasonable exercise of its discretion) or upon the reasonable request of a Loan Party, two original copies of Internal Revenue Service Form W‑9 (or any successor forms) properly completed and duly executed by such Lender to establish that such Lender is not subject to United States backup withholding Taxes with respect to any payments to such Lender of principal, interest, fees, or other amounts payable under any of the Loan Documents.
(e)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.19 (including by the payment of additional amounts pursuant to this Section 2.19), 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 2.19 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (e) (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 (e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (e) 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.

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(f)    Survival. Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(g)    For purposes of this Section 2.19, “applicable law” shall include FATCA.
Section 2.20    Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.17, 2.18, or 2.19, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund, or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.17, 2.18, or 2.19 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, funding, or maintaining of such Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Loans or the interests of such Lender; provided, that such Lender will not be obligated to utilize such other office pursuant to this Section 2.20 unless Lead Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Lead Borrower pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Lead Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error.
Section 2.21    Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that any Lender violates any provision of Section 9.05(c), or, other than at the direction or request of any regulatory agency or authority, defaults (in each case, a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any Term Loan (in each case, a “Defaulted Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents, and (b) to the extent permitted by applicable law, until such time as the Default Excess, if any, with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary prepayment of the Term Loans shall, if Administrative Agent so directs at the time of making such voluntary prepayment, be applied to the Term Loans of other Lenders as if such Defaulting Lender had no Term Loans outstanding and the outstanding Term Loans of such Defaulting Lender were zero and (ii) any mandatory prepayment of the Term Loans shall, if Administrative Agent so directs at the time of making such mandatory prepayment, be applied to the Term Loans of other Lenders (but not to the Term Loans of such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it being understood and agreed that Borrower shall be entitled to retain any portion of any mandatory prepayment of the Term Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b). No Term Loan Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by the Loan Parties of their obligations hereunder and the other Loan Documents shall not be excused or otherwise modified as a result of any Funding Default or the operation of this Section 2.21. The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to other rights and remedies which the Loan Parties may have against such Defaulting Lender with respect to any Funding Default and which Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default or violation of Section 9.05(c).

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Section 2.22    Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased Cost Lender”) shall give notice to Lead Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.18, 2.19, or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after Lead Borrower’s request for such withdrawal, (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five Business Days after Lead Borrower’s request that it cure such default, or (c) in connection with any proposed amendment, modification, termination, waiver, or consent with respect to any of the provisions hereof as contemplated by Section 10.05(b), the consent of Administrative Agent and Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased Cost Lender, Defaulting Lender, or Non-Consenting Lender (the “Terminated Lender”), (x) Administrative Agent may (except as to any Increased Cost Lender), by giving written notice to Lead Borrower and any Terminated Lender of its election to do so, and (y) the Lead Borrower may, upon notice to the Administrative Agent and any Terminated Lender, in the case of each of clauses (x) and (y), require such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.06, and Terminated Lender shall pay any fees payable thereunder in connection with such assignment; provided, that (A) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (1) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, together with, in the case of a Non-Consenting Lender, the Applicable Prepayment Premium with respect thereto (as if such Loans had been prepaid to such Non-Consenting Lender pursuant to Section 2.12 hereof) and (2) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10, (B) on the date of such assignment, Lead Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18 or 2.19, (C) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, that any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender, and (D) the Administrative Agent shall take all actions reasonably required to effect any assignment that the Lead Borrower may require pursuant to, and in compliance with, this Section 2.22.
Section 2.23    Joint and Several Liability.
(a)    Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by Agents and Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for the Obligations.
(b)    Each Borrower, 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 Borrower, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Section 2.23), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each Borrower without preferences or distinction among them. Accordingly, each Borrower hereby waives any and all suretyship defenses that would otherwise be available to such Borrower under applicable law.

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(c)    If and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due, whether upon maturity, acceleration, or otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrower will make such payment with respect to, or perform, such Obligations until such time as all of the Obligations are paid in full, and without the need for demand, protest, or any other notice or formality.
(d)    The Obligations of each Borrower under the provisions of this Secti