MCW Mister Car Wash Inc

 

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

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 26, 2024

 

 

Mister Car Wash, Inc.

(Exact name of Registrant as Specified in Its Charter)

 

 

Delaware			001-40542	47-1393909
(State or Other Jurisdiction of Incorporation)			(Commission File Number)	(IRS Employer Identification No.)
222 E. 5th Street
Tucson, Arizona				85705
(Address of Principal Executive Offices)				(Zip Code)

 

Registrant’s Telephone Number, Including Area Code: (520) 615-4000

 

N/A

(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:

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

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common stock, par value $0.01 per share		MCW		The New York Stock Exchange

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. ☐

 

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Item 1.01 Entry into a Material Definitive Agreement.

On November 26, 2024, Mister Car Wash Holdings, Inc. (the "Borrower" or the "Company") entered into Amendment No. 6 (the "Amendment") to its existing Amended and Restated First Lien Credit Agreement, dated as of May 14, 2019, with Hotshine Intermediate co, Inc. ("Holdings"), Bank of America, N.A., as administrative agent and collateral agent, and other lenders party thereto (as amended prior to the Amendment, the "Existing Credit Agreement" and, as amended by the Amendment, the "Credit Agreement") to reprice its existing Term Loan B due 2031. Defined terms used herein and not defined have the meaning set forth in the Credit Agreement.

The Amendment reduced the margins applicable to 2024-2 Refinancing Term Loans (as defined below) and Revolving Loans and reset the soft call protection of 1% for voluntary prepayments of 2024-2 Refinancing Term Loans to last for six months after the effective date of the Amendment.

2024-2 Refinancing Term Loans

Pursuant to the Amendment, the Borrower repriced its term loans in an aggregate principal amount of $923 million ("2024-2 Repriced Term Loans"). The 2024-2 Repriced Term Loans margin was reduced to 2.75% (from 3.00%), with unchanged step-downs based on the First Lien Net Leverage Ratio. For SOFR Loans, the margin starts at 2.75% and can decrease to 2.50% and 2.25% based on the First Lien Net Leverage Ratio (previously 2.75% and 2.50%). For Base Rate Loans, the margin was reduced to 1.75% (from 2.00%) and can decrease to 1.50% and 1.25%, depending on the First Lien Net Leverage Ratio (previously 1.75% and 1.50%).

2024 Revolving Commitments

Pursuant to the Amendment, the Revolving Loans margin was reduced to 2.75% (from 3.00%), with unchanged step-downs based on the First Lien Net Leverage Ratio. For SOFR Loans, the margin starts at 2.75% and can decrease to 2.50%, 2.25% and 2.00% based on the First Lien Net Leverage Ratio (previously 2.75%, 2.50% and 2.25%). For Base Rate Loans, the margin was reduced to 1.75% (from 2.00%) and can decrease to 1.50%, 1.25% and 1.00%, depending on the First Lien Net Leverage Ratio (previously 1.75%, 1.50% and 1.25%).

Other than as described above, the terms of the 2024-2 Repriced Term Loans and Revolving Loans and the obligations of the parties under the Existing Credit Agreement remain unchanged.

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

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information contained above in Item 1.01 is hereby incorporated by reference into this Item 2.03.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.		Description
10.1*		Amendment No. 6 to the First Lien Term Loan Agreement, dated November 26, 2024, by and among Mister Car Wash Holdings, Inc. and the parties thereto named therein.
104		Cover Page Interactive Data File – the cover page XBRL tags are embedded within the Inline Instance XBRL document

 

* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Borrower will supplementally furnish copies of omitted schedules and exhibits to the Securities and Exchange Commission or its staff upon its request.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

			Mister Car Wash, Inc.
Date:	December 3, 2024	By:	/s/ Markus Hartmann
			Markus Hartmann General Counsel

 

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AMENDMENT NO. 6 TO AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT

This AMENDMENT NO. 6 TO AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT, dated as of November 26, 2024 (this “Sixth Amendment”), is entered into among MISTER CAR WASH HOLDINGS, INC., a Delaware corporation (the “Borrower”), HOTSHINE INTERMEDIATECO, INC., a Delaware corporation (“Holdings”), the other Guarantors party hereto, BANK OF AMERICA, N.A., as the administrative agent (in such capacity, together with its successors and permitted assigns in such capacity, the “Administrative Agent”) and collateral agent (in such capacity, together with its successors and permitted assigns in such capacity, the “Collateral Agent”) under the Credit Agreement referred to below, each of the Term Loan Lenders party hereto, each of the Revolving Lenders party hereto, and the other parties party hereto. Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Amended Credit Agreement referred to below.

PRELIMINARY STATEMENTS

WHEREAS, the Borrower, Holdings, the Lenders from time to time party thereto, BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent, are party to that certain Amended and Restated First Lien Credit Agreement, dated as of May 14, 2019 (as amended by that certain Amendment No. 1 to Amended and Restated First Lien Credit Agreement, dated as of February 5, 2020, that certain Amendment No. 2 to Amended and Restated First Lien Credit Agreement, dated as of June 4, 2021, that certain Amendment No. 3 to Amended and Restated Credit Agreement, dated as of December 8, 2021, that certain Amendment No. 4 to Amended and Restated Credit Agreement, dated as of December 12, 2021, and that certain Amendment No. 5 to Amended and Restated Credit Agreement, dated as of March 27, 2024 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Sixth Amendment, the “Amended Credit Agreement”);

WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended to (a) reduce the Applicable Rate applicable to the Term Loans and Revolving Loans and (b) make certain other related amendments and modifications to the Existing Credit Agreement, in each case, as set forth herein (clauses (a) and (b) collectively, the “Repricing Amendments”);

WHEREAS, in connection with the Repricing Amendments, to the extent any Term Loan Lender holding Term Loans (the “Existing Term Lender”) does not consent to this Sixth Amendment (including the Repricing Amendments), the Borrower shall refinance and/or replace such Term Loan Lender with certain lenders who agree to provide a Refinancing Term Commitment pursuant to and in accordance with the terms of the Existing Credit Agreement (such Term Loan Lenders to the extent they provide such a Refinancing Term Commitment, the “Sixth Amendment Refinancing Term Lenders” and the Lenders party to the Existing Credit Agreement who consent to this Sixth Amendment, to the extent of their Term Loans held immediately prior to this Sixth Amendment, the “Rollover Term Lenders” and together with the Sixth Amendment Refinancing Term Lenders, the “2024-2 Refinancing Term Loan Lenders”);

WHEREAS, upon the effectiveness of this Sixth Amendment, each Existing Term Lender that shall have executed and delivered a signature page to the consent to this Sixth Amendment, substantially in the form of Exhibit B hereto (the “Consent”) under the “Consent and Convert (Cashless Roll Option)” shall be deemed to have converted all (or such lesser amount allocated to such Existing Term Lender by the Joint Lead Arrangers (as defined below) of its Existing Term Loans (as defined below) (which Existing Term Loans shall thereafter no longer be deemed to be outstanding) into Sixth Amendment Refinancing Term Loans under the Amended Credit Agreement in the same aggregate principal amount as such Rollover Term

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Lender’s Existing Term Loans (or such lesser amount allocated to such Rollover Term Lender by the Joint Lead Arrangers);

WHEREAS, upon the effectiveness of this Sixth Amendment, (i) each Existing Term Lender that shall have executed and delivered a Consent under the “Consent and Reallocation (Assignment Settlement Option)” and each Existing Term Lender that shall not have executed a Consent hereto (collectively, the “Non-Rollover Term Lenders”), shall be repaid in full, and the Administrative Agent shall pay to such Existing Lender all accrued and unpaid interest on the Existing Term Loans held by it to, but not including, the Sixth Amendment Effective Date and (ii) each Sixth Amendment Refinancing Term Lender with a Sixth Amendment Refinancing Term Commitment (as defined below) shall make a Sixth Amendment Refinancing Term Loan to the Borrower in a principal amount equal to its Sixth Amendment Refinancing Term Commitment;

WHEREAS, the Borrower has requested, and each of the 2024-2 Refinancing Term Loan Lenders and the Administrative Agent have agreed, among other things, (a) in the case of Rollover Term Lenders holding Term Loans, to permit an aggregate principal amount of term loans equal to the aggregate principal amount of Term Loans held by such Rollover Term Lenders under the Existing Credit Agreement to be rolled over and deemed outstanding as Term Loans of such Rollover Term Lenders on the Sixth Amendment Effective Date under the Amended Credit Agreement (the “Rollover Term Loans”; and the Commitments in respect thereof, the “Rollover Term Commitments”) and (b) in the case of the Sixth Amendment Refinancing Term Lenders, to provide one or more Refinancing Term Commitments as set forth on Schedule 2.01 attached hereto as Annex 1 to be funded as Refinancing Term Loans (the “Sixth Amendment Refinancing Term Loans”, and together with the Rollover Term Loans, the “2024-2 Refinancing Term Loans” and the Commitments in respect thereof, the “Sixth Amendment Refinancing Term Commitments”, and together with the Rollover Term Commitments, the “2024-2 Refinancing Term Commitments”), in each case, on the Sixth Amendment Effective Date under the Amended Credit Agreement to refinance Term Loans (as defined in the Existing Credit Agreement) under the Existing Credit Agreement;

WHEREAS, the proceeds of the 2024-2 Refinancing Term Loans incurred on the Sixth Amendment Effective Date shall be used (a) to repay a portion of the outstanding principal amount of Term Loans (as defined in the Existing Credit Agreement) on the Sixth Amendment Effective Date and pay the unpaid interest accrued upon such outstanding Term Loans, if any, as well as any other amounts payable in connection therewith and (b) to pay the Sixth Amendment Transaction Expenses; and

WHEREAS, the Rollover Term Lenders party hereto constitute the “Required Lenders” under the Existing Credit Agreement and the Administrative Agent, the Sixth Amendment Refinancing Term Lenders and the Rollover Term Lenders party hereto are willing on the terms and subject to the conditions set forth below, to enter into the amendments, modifications and agreements set forth in this Sixth Amendment and the Amended Credit Agreement;

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by each party hereto, it is agreed that:

The rules of construction specified in Sections 1.02 through 1.12 of the Credit Agreement shall apply to this Sixth Amendment, mutatis mutandis, including the terms defined in the preamble and recitals hereto.

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Subject to the satisfaction of the conditions set forth in Section 7 hereof:

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On and after the Sixth Amendment Effective Date:

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The Borrower hereby represents and warrants to the Term Loan Lenders and the Administrative Agent on and as of the Sixth Amendment Effective Date, that:

This Sixth Amendment shall become effective as of the first date (the “Sixth Amendment Effective Date”) when the conditions set forth in this Section 7 shall have been satisfied (or waived by the Term Loan Lenders party hereto) in accordance with the Credit Agreement:

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For purposes of determining compliance with the conditions specified in this Section 7, each Lender that has signed this Sixth Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 7 to be consented to or approved by or acceptable or satisfactory to such Lender, unless the Administrative Agent shall have received notice from such Lender prior to the proposed Sixth Amendment Effective Date specifying its objection thereto.

By executing and delivering this Sixth Amendment, (i) the Borrower and each other Loan Party hereby agrees that all Loans shall be guaranteed pursuant to the Guaranty in accordance with the terms and provisions thereof and shall be secured pursuant to the Collateral Documents in accordance with the terms and provisions thereof, and (ii) the Borrower and each other Loan Party hereby (A) reaffirms its prior grant and the validity of the Liens granted by it pursuant to the Collateral Documents, (B) agrees that after giving effect to this Sixth Amendment and the Sixth Amendment Effective Date, the Guaranty and the Liens created pursuant to the Collateral Documents for the benefit of the Secured Parties continue to be in full force and effect, and (C) affirms, acknowledges and confirms its guarantee of obligations and liabilities under the Credit Agreement and each other Loan Document to which it is a party and the pledge of and/or grant of security interest in its assets as Collateral to secure the Obligations under the Credit Agreement, in each case after giving effect to this Sixth Amendment and the Sixth Amendment Effective Date, all as provided in such Loan Documents, and acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents, each as amended hereby, in each case after giving effect to this Sixth Amendment and the Sixth Amendment Effective Date.

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The Borrower hereby appoints Bank of America, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc., Wells Fargo Securities, LLC, Fifth Third Bank, National Association, MUFG Bank, Ltd., RBC Capital Markets, Jefferies Finance LLC, BMO Capital Markets Corp., Banco Santander, S.A., New York Branch and U.S. Bank National Association, as the joint lead arrangers in connection with the Sixth Amendment (in such capacities, collectively, the “Joint Lead Arrangers”). The Joint Lead Arrangers shall have no right, power, obligation, liability, responsibility or duty under this Sixth Amendment other than those applicable to all Lenders as such. Without limiting the foregoing, the Joint Lead Arrangers so identified shall not have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Sixth Amendment or in taking or not taking action hereunder.

 

[Remainder of page intentionally blank; signatures begin next page]

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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Sixth Amendment as of the date first above written.

MISTER CAR WASH HOLDINGS, INC., as the Borrower

By: /s/ John L. Lai
Name: John L. Lai
Title: President

HOTSHINE INTERMEDIATECO, INC., as Holdings

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CAR WASH PARTNERS, LLC

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CWP ASSET CORP.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CWPS CORP.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

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CWP WEST, LLC

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CWPU CORP.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CWP MANAGEMENT CORP.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CAR WASH HEADQUARTERS, LLC

By: /s/ John L. Lai
Name: John L. Lai
Title: President

MCW GC, LLC

By: CAR WASH PARTNERS, INC., its manager

By: /s/ John L. Lai
Name: John L. Lai
Title: President

 

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CWP CALIFORNIA CORP.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

PS ACQUISITION SUB CORP.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

PRIME SHINE, LLC

By: /s/ John L. Lai
Name: John L. Lai
Title: President

SUNSHINE ACQUISITION SUB CORP.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

MDKMH PARTNERS, INC.

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CLEAN STREAK VENTURES, LLC

By: /s/ John L. Lai
Name: John L. Lai
Title: President

CFCW PROPCO NONA, LLC

By: /s/ John L. Lai
Name: John L. Lai
Title: President

 

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BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent

By: /s/ Melanie Brichant
Name: Melanie Brichant
Title: AVP

BANK OF AMERICA, N.A., as a Sixth Amendment Refinancing Term Lender

By: /s/ Patrick Clifford
Name: Patrick Clifford
Title: Vice President

 

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BANK OF AMERICA, N.A., as a Revolving Lender

By: /s/ Patrick Clifford
Name: Patrick Clifford
Title: Vice President

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Goldman Sachs Bank USA, as a Revolving Lender

By: /s/ Priyankush Goswami
Name: Priyankush Goswami
Title: Authorized Signatory

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MORGAN STANLEY SENIOR FUNDING, INC., as a Revolving Lender

By: /s/ Gretell Merlo
Name: Gretell Merlo
Title: Vice President

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WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Revolving Lender

By: /s/ John Hancey
Name: John Hancey
Title: Senior Vice President

 

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Fifth Third Bank, National Association, as a Revolving Lender

By: /s/ Brian Anderson
Name: Brian Anderson
Title: Executive Director

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MUFG BANK, LTD., as a Revolving Lender

By: /s/ Richard Zhang
Name: Richard Zhang
Title: Vice President

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Royal Bank of Canada, as a Revolving Lender

By: /s/ Michael Santana-Mondo
Name: Michael Santana-Mondo
Title: Authorized Signatory

 

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BANK OF MONTREAL, as a Revolving Lender

By: /s/ Maggie Donahue
Name: Maggie Donahue
Title: Director

 

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BANCO SANTANDER, S.A., NEW YORK BRANCH, as a Revolving Lender

By: /s/ D. Andrew Maletta
Name: D. Andrew Maletta
Title: Executive Director

By: /s/ Michael Leonardos
Name: Michael Leonardos
Title: Executive Director

 

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U.S. BANK NATIONAL ASSOCIATION, as a Revolving Lender

By: /s/ Ryan Chin
Name: Ryan Chin
Title: Managing Director

 

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WESTERN ALLIANCE BANK, as a Revolving Lender

By: /s/ Roham Medifar
Name: Roham Medifar
Title: Senior Vice President

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[LENDER ELECTIONS ON FILE WITH THE ADMINISTRATIVE AGENT]

 

 

 

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Schedule I

 

Schedule 1 to Amendment No. 6: Schedule 2.01 to the Amended Credit Agreement

Rollover Term Commitment

Rollover Term Lender	Rollover Term Commitment	Pro Rata Share
On file with the Administrative Agent	$914,763,360	100%
Total	$914,763,360	100%

 

 

Sixth Amendment Refinancing Term Commitment

Sixth Amendment Refinancing Term Lender	Sixth Amendment Refinancing Term Commitment	Pro Rata Share
Bank of America, N.A.	$7,924,140	100%
Total	$7,924,140	100%

 

 

 

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Exhibit A
Amended Credit Agreement

[See attached.]

 

 

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AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT

dated as of May 14, 2019,

as amended or otherwise modified by Amendment No. 1 to Amended and Restated First Lien Credit Agreement dated as of February 5, 2021, Amendment No. 2 to Amended and Restated First Lien Credit Agreement, dated as of June 4, 2021, Amendment No. 3 to Amended and Restated First Lien Credit Agreement, dated as of December 8, 2021, Amendment No. 4 to Amended and Restated First Lien Credit Agreement, dated as of December 12, 2022, and Amendment No. 5 to Amended and Restated First Lien Credit Agreement dated as of March 27, 2024, and Amendment No. 6 to Amended and Restated First Lien Credit Agreement dated as of November 26, 2024

by and among

MISTER CAR WASH HOLDINGS, INC.,
as Borrower

HOTSHINE INTERMEDIATECO, INC.,
as Holdings

BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent

and

THE LENDERS PARTY HERETO
________________

Bank of America, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc., Wells Fargo Securities, LLC, Fifth Third Bank, National Association, MUFG Bank, Ltd., RBC Capital Markets1, Jefferies Finance LLC, BMO Capital Markets Corp., Banco Santander, S.A., New York Branch, and U.S. Bank National Association,

as Joint Lead Arrangers

 

Bank of America, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc. and Wells Fargo Securities, LLC,

as Joint Bookrunners

Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc., Wells Fargo Securities, LLC, Fifth Third Bank, National Association, MUFG Bank, Ltd., RBC Capital Markets, Jefferies Finance LLC, BMO Capital Markets Corp., Banco Santander, S.A., New York Branch, and U.S. Bank National Association,

as Syndication Agents

 

 

 

 

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ARTICLE I
Definitions and Accounting Terms

SECTION 1.01 Defined Terms 1

SECTION 1.02 Other Interpretive Provisions 8081

SECTION 1.03 Accounting Terms; Accounting Periods; Unrestricted Subsidiaries; Determination of Fair Market Value 82

SECTION 1.04 Rounding 8283

SECTION 1.05 References to Agreements, Laws, Etc. 8283

SECTION 1.06 Times of Day 8283

SECTION 1.07 Available Amount Transactions 83

SECTION 1.08 Pro Forma Calculations; GAAP; Limited Condition Transactions; Basket and Ratio Compliance 83

SECTION 1.09 Additional Alternative Currencies 8788

SECTION 1.10 Currency Equivalents Generally 88

SECTION 1.11 Co-Borrowers 89

SECTION 1.12 Cashless Rollovers; Permitted Debt Exchanges 8990

SECTION 1.13 Amendment and Restatement 90

ARTICLE II
The Commitments and Borrowings

SECTION 2.01 Term Loans 91

SECTION 2.02 Revolving Loans 9293

SECTION 2.03 [Reserved] 9394

SECTION 2.04 Issuance of Letters of Credit and Purchase of Participations Therein 9394

SECTION 2.05 Conversion/Continuation 102103

SECTION 2.06 Availability 103104

SECTION 2.07 Prepayments 103104

SECTION 2.08 Termination or Reduction of Commitments 111112

SECTION 2.09 Repayment of Loans 111112

SECTION 2.10 Interest 112113

SECTION 2.11 Fees 113114

SECTION 2.12 Computation of Interest and Fees 115116

SECTION 2.13 Evidence of Indebtedness 115116

SECTION 2.14 Payments Generally 115116

SECTION 2.15 Sharing of Payments, Etc. 117118

SECTION 2.16 Incremental Borrowings 117118

SECTION 2.17 Refinancing Amendments 121122

SECTION 2.18 Extensions of Loans 122123

SECTION 2.19 Defaulting Lenders 125126

SECTION 2.20 Currency Equivalents 127128

SECTION 2.21 Judgment Currency 128129

ARTICLE III
Taxes, Increased Costs Protection and Illegality

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SECTION 3.01 Taxes 128129

SECTION 3.02 Illegality 132133

SECTION 3.03 Inability to Determine Rates 133134

SECTION 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on 136137

SECTION 3.05 Funding Losses 137138

SECTION 3.06 Matters Applicable to All Requests for Compensation 138139

SECTION 3.07 Replacement of Lenders Under Certain Circumstances 139140

SECTION 3.08 Survival 140141

ARTICLE IV
Conditions Precedent to Borrowings

SECTION 4.01 Conditions to Initial Borrowing 140141

SECTION 4.02 Conditions to All Borrowings After the Closing Date 142143

ARTICLE V
Representations and Warranties

SECTION 5.01 Existence, Qualification and Power; Compliance with Laws 143144

SECTION 5.02 Authorization; No Contravention 143144

SECTION 5.03 Governmental Authorization 144145

SECTION 5.04 Binding Effect 144145

SECTION 5.05 Financial Statements; No Material Adverse Effect 144145

SECTION 5.06 Litigation 144145

SECTION 5.07 Labor Matters 145146

SECTION 5.08 Ownership of Property; Liens 145146

SECTION 5.09 Environmental Matters 145146

SECTION 5.10 Taxes 145146

SECTION 5.11 ERISA Compliance 145146

SECTION 5.12 Subsidiaries 146147

SECTION 5.13 Margin Regulations; Investment Company Act 146147

SECTION 5.14 Disclosure 146147

SECTION 5.15 Intellectual Property; Licenses, Etc. 147148

SECTION 5.16 Solvency 147148

SECTION 5.17 USA PATRIOT Act, FCPA and OFAC 147148

SECTION 5.18 Collateral Documents 148149

SECTION 5.19 Use of Proceeds 148149

ARTICLE VI
Affirmative Covenants

SECTION 6.01 Financial Statements 148149

SECTION 6.02 Certificates; Other Information 149150

SECTION 6.03 Notices 151152

SECTION 6.04 Payment of Certain Taxes 151152

SECTION 6.05 Preservation of Existence, Etc. 151152

SECTION 6.06 Maintenance of Properties 152153

SECTION 6.07 Maintenance of Insurance 152153

SECTION 6.08 Compliance with Laws 152153

SECTION 6.09 Books and Records 152153

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SECTION 6.10 Inspection Rights 152153

SECTION 6.11 Covenant to Guarantee Obligations and Give Security 153154

SECTION 6.12 Further Assurances 155156

SECTION 6.13 Designation of Subsidiaries 156157

SECTION 6.14 Maintenance of Ratings 156157

SECTION 6.15 Post-Closing Matters 156157

SECTION 6.16 Use of Proceeds 157158

ARTICLE VII
Negative Covenants

SECTION 7.01 Liens 157158

SECTION 7.02 Investments 162163

SECTION 7.03 Indebtedness 166167

SECTION 7.04 Fundamental Changes 171172

SECTION 7.05 Dispositions 173174

SECTION 7.06 Restricted Payments 175176

SECTION 7.07 Change in Nature of Business 179181

SECTION 7.08 Transactions with Affiliates 180181

SECTION 7.09 Burdensome Agreements 182183

SECTION 7.10 Prepayments, Etc. of Junior Financing; Amendments to Junior Financing Documents and Organizational Documents 184185

SECTION 7.11 Passive Holding Company 186187

ARTICLE VIII
Financial Covenant

SECTION 8.01 Rent Adjusted Total Net Leverage Ratio 187188

SECTION 8.02 Borrower’s Right to Cure 187189

ARTICLE IX
Events of Default and Remedies

SECTION 9.01 Events of Default 188189

SECTION 9.02 Remedies upon Event of Default 191192

SECTION 9.03 Application of Funds 193194

ARTICLE X
Administrative Agent and Other Agents

SECTION 10.01 Appointment and Authority of the Administrative Agent 194195

SECTION 10.02 Rights as a Lender 194196

SECTION 10.03 Exculpatory Provisions 195196

SECTION 10.04 Reliance by the Agents 196197

SECTION 10.05 Delegation of Duties 196198

SECTION 10.06 Non-Reliance on Agents and Other Lenders; Disclosure of Information by Agents 197198

SECTION 10.07 Indemnification of Agents 198199

SECTION 10.08 No Other Duties; Other Agents, Lead Arrangers, Lead Bookrunners, Managers, Etc. 199200

SECTION 10.09 Resignation of Administrative Agent or Collateral Agent 199200

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SECTION 10.10 Administrative Agent May File Proofs of Claim; Credit Bidding 200201

SECTION 10.11 Collateral and Guaranty Matters 202203

SECTION 10.12 Appointment of Supplemental Administrative Agents 207208

SECTION 10.13 Intercreditor Agreements 208209

SECTION 10.14 Secured Cash Management Agreements and Secured Hedge Agreements 208210

SECTION 10.15 Withholding Taxes 209210

SECTION 10.16 Certain ERISA Matters 209210

SECTION 10.17 Recovery of Erroneous Payments 210211

ARTICLE XI
Miscellaneous

SECTION 11.01 Amendments, Waivers, Etc. 211212

SECTION 11.02 Notices and Other Communications; Facsimile Copies 216217

SECTION 11.03 No Waiver; Cumulative Remedies 218219

SECTION 11.04 Attorney Costs and Expenses 219220

SECTION 11.05 Indemnification by the Borrower 219220

SECTION 11.06 Marshaling; Payments Set Aside 221222

SECTION 11.07 Successors and Assigns 221222

SECTION 11.08 Confidentiality 229230

SECTION 11.09 Set-off 231232

SECTION 11.10 Interest Rate Limitation 232233

SECTION 11.11 Counterparts; Integration; Effectiveness 232233

SECTION 11.12 Electronic Execution; Electronic Records; Counterparts 232233

SECTION 11.13 Survival 232233

SECTION 11.14 Severability 233234

SECTION 11.15 GOVERNING LAW 233234

SECTION 11.16 WAIVER OF RIGHT TO TRIAL BY JURY 234235

SECTION 11.17 Limitation of Liability 235236

SECTION 11.18 Use of Name, Logo, Etc. 235236

SECTION 11.19 USA PATRIOT Act Notice 235236

SECTION 11.20 Service of Process 235236

SECTION 11.21 No Advisory or Fiduciary Responsibility 235236

SECTION 11.22 Binding Effect 236237

SECTION 11.23 Obligations Several; Independent Nature of Lender’s Rights 236237

SECTION 11.24 Headings 236237

SECTION 11.25 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. 236237

SECTION 11.26 Acknowledgment Regarding Any Supported QFCs 237238

SECTION 11.27 Disqualified Lenders and Net Short Positions 238239

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SCHEDULES

2.01 Commitments

2.04 Existing Letters of Credit

5.06 Litigation

5.07 Labor Matters

5.08 Material Real Property

5.11(a) ERISA Compliance

5.11(b) ERISA Compliance

5.12 Subsidiaries

6.15 Post-Closing Matters

11.02 Administrative Agent’s Office, Certain Addresses for Notices

EXHIBITS

Form of

A-1 Committed Loan Notice

A-2 Issuance Notice

A-3 Conversion/Continuation Notice

B-1 Term Loan Note

B-2 Revolving Loan Note

C Compliance Certificate

D-1 Assignment and Assumption

D-2 Affiliate Assignment Notice

E Guaranty

F Security Agreement

G-1 Non-Bank Certificate (For Foreign Lenders That Are Not Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

G-2 Non-Bank Certificate (For Foreign Lenders That Are Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

G-3 Non-Bank Certificate (For Foreign Participants That Are Not Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

G-4 Non-Bank Certificate (For Foreign Participants That Are Partnerships or Pass-Thru Entities For U.S. Federal Income Tax Purposes)

H Global Intercompany Note

I Solvency Certificate

J Prepayment Notice

K-1 Junior Lien Intercreditor Agreement

K-2 Equal Priority Intercreditor Agreement

L Auction Procedures

 

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AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT

This AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT is entered into as of May 14, 2019, by and among MISTER CAR WASH HOLDINGS, INC., a Delaware corporation (the “Borrower”), HOTSHINE INTERMEDIATECO, INC., a Delaware corporation (“Holdings”), BANK OF AMERICA, N.A. (“BofA”), as successor to JEFFERIES FINANCE LLC (“Jefferies Finance”), as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) and as collateral agent (in such capacity, including any successor thereto, the “Collateral Agent”) under the Loan Documents, each Issuing Bank from time to time party hereto and each lender from time to time party hereto (collectively, the “Lenders” and, individually, a “Lender”).

PRELIMINARY STATEMENTS

The Borrower, the Administrative Agent and certain lenders are party to that certain First Lien Credit Agreement, dated as of August 21, 2014 (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of September 25, 2014, as amended by that certain Incremental Amendment No. 1, dated as of June 30, 2016, as amended by that certain Second Incremental Amendment, dated as of December 14, 2016, as amended by the that certain Third Incremental Amendment to Credit Agreement, dated as of June 15, 2017, as amended by that certain Fourth Incremental Amendment, dated as of December 18, 2017, as amended by that certain Fifth Incremental Amendment, dated as of December 7, 2018, and as amended by that certain Sixth Incremental Amendment, dated as of March 29, 2019, the “Existing Credit Agreement”).

The parties hereto wish to completely amend, restate and modify (but not extinguish) the Existing Credit Agreement through the execution of this Agreement.

TheOn the Fifth Amendment Effective Date, the Borrower has requested that (a) the 2024 Term Loan Lenders extend credit to the Borrower in the form of $925,000,000 of 2024 Term Loans and (b) the Revolving Lenders make Revolving Loans, and the Issuing Banks issue Letters of Credit, pursuant to the terms of this Agreement.

The proceeds of the 2024 Term Loans will bewere used on the Fifth Amendment Effective Date (a) to repay the Existing Debt, (b) to pay the Transaction Expenses and (c) for other purposes permitted by this Agreement.

On the Sixth Amendment Effective Date, the Borrower has requested that the 2024-2 Refinancing Term Loan Lenders extend credit to the Borrower in the form of $922,687,500 of 2024-2 Refinancing Term Loans.

The proceeds of the 2024-2 Refinancing Term Loans will be used on the Sixth Amendment Effective Date to repay the Existing Term Loans.

The applicable Lenders have indicated their willingness to lend, and each Issuing Bank has indicated its willingness to issue Letters of Credit, in each case on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

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“2021 Incremental Revolving Lenders” has the meaning provided in the Second Amendment.

“2021 Incremental Term Lenders” has the meaning provided in the Third Amendment.

“2021 Incremental Term Loans” has the meaning provided in the Third Amendment.

“2021 Incremental Term Loan Commitments” has the meaning provided in the Third Amendment.

“2021 Refinancing Revolving Lenders” has the meaning provided in the Second Amendment.

“2024 Incremental Term Commitments” has the meaning provided in the Fifth Amendment.

“2024 Incremental Term Lenders” has the meaning provided in the Fifth Amendment.

“2024 Incremental Term Loans” has the meaning provided in the Fifth Amendment. For the avoidance of doubt, all 2024 Incremental Term Loans were refinanced in full by the 2024-2 Refinancing Term Loans on the Sixth Amendment Effective Date.

“2024 Lenders” has the meaning provided in the Fifth Amendment.

“2024 Refinancing Term Loan Commitments” has the meaning provided in the Fifth Amendment.

“2024 Refinancing Term Loan Lenders” has the meaning provided in the Fifth Amendment.

“2024 Refinancing Term Loans” has the meaning provided in the Fifth Amendment

“2024 Term Loans” has the meaning provided in the Fifth Amendment. For the avoidance of doubt, all 2024 Term Loans were refinanced in full by the 2024-2 Refinancing Term Loans on the Sixth Amendment Effective Date.

“2024-2 Refinancing Term Commitments” has the meaning provided in the Sixth Amendment.

“2024-2 Refinancing Term Loan Lenders” has the meaning provided in the Sixth Amendment.

“2024-2 Refinancing Term Loans” has the meaning provided in the Sixth Amendment.

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

“Acquisition Transaction” means the purchase or other acquisition (in one transaction or a series of transactions, including by merger or otherwise) by the Borrower or any Restricted Subsidiary of all or substantially all of the property, assets or business of another Person, or assets constituting a business unit,

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line of business or division or, any Person, or of a majority of the outstanding Equity Interests of any Person (including any Investment which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in any Joint Venture or other Person to an amount in excess (or further in excess) of the majority of the outstanding Equity Interests of such Joint Venture or other Person).

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When comparing the All-In Yield of any Indebtedness (or Loans of any Class) to the All-In Yield of the 20242024-2 Refinancing Term Loans (or any other applicable Indebtedness), as of any date,

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First Lien Net Leverage Ratio	Applicable Commitment Fee
Equal to or above 3.75 to 1.00	0.400%
below 3.75 to 1.00, but above or equal to 3.25 to 1.00	0.325%
below 3.25 to 1.00, but above or equal to 2.50 to 1.00	0.250%
Below 2.50 to 1.00	0.200%

No change in the Applicable Commitment Fee shall be effective until three Business Days after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(a) calculating the First Lien Net Leverage Ratio. At any time the Borrower has not submitted to the Administrative Agent the applicable information as and when required under Section 6.02(a), the Applicable Commitment Fee shall be determined as if the First Lien Net Leverage Ratio were in excess of 3.75 to 1.00. Within one Business Day of receipt of the applicable information under Section 6.02(a), the Administrative Agent shall give each Lender telefacsimile or telephonic notice (confirmed in writing) of the Applicable Commitment Fee in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 6.02 is determined to be inaccurate (at a time prior to the satisfaction of the Termination Conditions), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Commitment Fee for any period (an “Applicable Period”) than

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the Applicable Commitment Fee applied for such Applicable Period, then (a) the Borrower shall promptly (and in any event within five Business Days) following such determination deliver to the Administrative Agent correct financial statements and certificates required by Section 6.02 for such Applicable Period, (b) the Applicable Commitment Fee for such Applicable Period shall be determined as if the First Lien Net Leverage Ratio were determined based on the amounts set forth in such correct financial statements and certificates and (c) the Borrower shall promptly (and in any event within ten Business Days) following delivery of such corrected financial statements and certificates pay to the Administrative Agent the accrued additional amounts owing as a result of such increased Applicable Commitment Fee for such Applicable Period. Notwithstanding anything to the contrary set forth herein, the provisions of this paragraph may be amended or waived with the consent of only the Borrower and the Required Revolving Lenders.

First Lien Net Leverage Ratio	Alternate Base Rate Spread	SOFR Spread
Above 2.75 to 1.00	1.75%	2.75%
Equal to or below 2.75 to 1.00, but above 2.25 to 1.00	1.751.50%	2.752.50%
Equal to or below 2.25 to 1.00	1.501.25%	2.502.25%

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First Lien Net Leverage Ratio	Alternate Base Rate Spread	SOFR/Alternative Currency Spread
Equal to or above 3.75 to 1.00	2.001.75%	3.002.75%
Below 3.75 to 1.00, but above or equal to 3.25 to 1.00	1.751.50%	2.752.50%
Below 3.25 to 1.00, but above or equal to 2.50 to 1.00	1.501.25%	2.502.25%
Below 2.50 to 1.00	1.251.00%	2.252.00%

No change in the Applicable Rate for Revolving Loans or 20242024-2 Refinancing Term Loans, as applicable, shall be effective until three Business Days after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 6.02(a) calculating the First Lien Net Leverage Ratio. At any time the Borrower has not submitted to the Administrative Agent the applicable information as and when required under Section 6.02(a), the Applicable Rate for Revolving Loans and 20242024-2 Refinancing Term Loans shall be determined as if the First Lien Net Leverage Ratio were in excess of 3.75 to 1.00. Within one Business Day of receipt of the applicable information under Section 6.02(a), the Administrative Agent shall give each Lender facsimile or telephonic notice (confirmed in writing) of the Applicable Rate in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 6.02 is determined to be inaccurate (at a time prior to the satisfaction of the Termination Conditions), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (a) the Borrower shall promptly (and in any event within five Business Days) following such determination deliver to the Administrative Agent correct financial statements and certificates required by Section 6.02 for such Applicable Period, (b) the Applicable Rate for such Applicable Period shall be determined as if the First Lien Net Leverage Ratio were determined based on the amounts set forth in such correct financial statements and certificates and (c) the Borrower shall promptly (and in any event within ten Business Days) following delivery of such corrected financial statements and certificates pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Rate for such Applicable Period. Notwithstanding anything to the contrary set forth herein, the provisions of this paragraph may be amended or waived with respect to any Class with the consent of only the Borrower and the Required Lenders of such Class (or in the case of the rate specified in the preceding sentence, all affected Lenders of such Class).

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Notwithstanding anything to the contrary, to the extent any Excess Cash Flow is not applied to make a prepayment pursuant to Section 2.07(b)(i) by virtue of the application of Section 2.07(b)(vi), such Excess Cash Flow shall not under any circumstances increase the Available Amount.

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

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It is understood and agreed that (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173), all Laws relating thereto, all interpretations and applications thereof and any compliance by a Lender with any and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof or relating thereto and (ii) all requests, rules, guidelines, requirements or directives issued by any United States or foreign regulatory authority in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar

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authority) in each case pursuant to Basel III, shall, for the purposes of this Agreement, be deemed to be adopted subsequent to the date hereof and a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented.

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“Consolidated Interest Expense” means, for any Test Period, the sum of:

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but excluding, for the avoidance of doubt, (i) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses and any other amounts of non-cash interest other than referred to in clause (b) above (including as a result of the effects of acquisition method accounting or pushdown accounting), (ii) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging, (iii) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates, (iv) commissions, discounts, yield, make whole premium and other fees and charges (including any interest expense) incurred in connection with any permitted receivables financing, (v) any “additional interest” owing pursuant to a registration rights agreement with respect to any securities, (vi) any payments with respect to make-whole premiums or other breakage costs of any Indebtedness, including any Indebtedness issued in connection with the Transactions, (vii) penalties and interest relating to taxes, (viii) accretion or accrual of discounted liabilities not constituting Indebtedness, (ix) interest expense attributable to a direct or indirect parent entity resulting from push-down accounting, (x) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting and (xi) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to any Permitted Acquisition or similar Investment permitted hereunder, all as calculated on a consolidated basis in accordance with GAAP. For the avoidance of doubt, interest expense shall be determined after giving effect to any net payments made or received by the Borrower and its Restricted Subsidiaries in respect of Swap Contracts relating to interest rate protection.

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Credit Agreement Refinancing Indebtedness will be deemed to include any Registered Equivalent Notes issued in exchange therefor.

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

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

“Derivative Instrument” means with respect to a Person, any contract or instrument to which such Person is a party (whether or not requiring further performance by such Person), the value and/or cash flows of which (or any portion thereof) are based on the value and/or performance of the Loans and/or any Deliverable Obligations or “Obligations” (as defined in the ISDA CDS Definitions) with respect to the Loan Parties; provided that a “Derivative Instrument” will not include any contract or instrument that is entered into pursuant to bona fide market-making activities.

 

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in each case, prior to the Latest Maturity Date of the Loans at the time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of any Company Person of Holdings, the Borrower or the Restricted Subsidiaries or by any such plan to such Company Person, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Holdings, the Borrower or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such Company Person’s termination, death or disability.

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The Agent shall not disclose any list of Disqualified Lenders. The Borrower shall, upon request of any Lender, identify whether any Person identified by such Lender as a proposed assignee or Participant is a Disqualified Lender. The Borrower, by written notice to the Administrative Agent, may from time to time remove any entity from the list of Disqualified Lenders, and such entity removed from the list of Disqualified Lenders shall no longer be a Disqualified Lender for any purpose under any Loan Document, unless subsequently identified in writing in accordance with this definition. Any Person that is a Lender and subsequently becomes a Disqualified Lender (but such Person was not a Disqualified Lender on the Closing Date or at the time it became a Lender) shall be deemed to not be a Disqualified Lender hereunder with respect to any Loans held by it immediately prior to becoming a Disqualified Lender.

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

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“Excluded Subsidiary” means:

provided that the Borrower, in its sole discretion (or in the case of any Foreign Subsidiary, with the consent of the Administrative Agent not to be unreasonably withheld), may cause any Restricted Subsidiary that

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qualifies as an Excluded Subsidiary under clauses (a) through (m) above to become a Guarantor in accordance with the definition thereof (subject to completion of any requested “know your customer” and similar requirements of the Administrative Agent) and thereafter such Subsidiary shall not constitute an “Excluded Subsidiary” (unless and until the Borrower elects, in its sole discretion, to designate such Persons as an Excluded Subsidiary); provided, further, that in no event shall any Co-Borrower constitute or be designated as an “Excluded Subsidiary”.

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provided that, notwithstanding the foregoing, Indebtedness will be deemed not to include indebtedness, guarantees or obligations that are (1) contingent obligations incurred in the ordinary course of business unless and until such obligations are non-contingent, (2) trade payables and commercial guarantees or arrangements related or incidental to the business of the Loan Parties and the Restricted Subsidiaries, (3) customary purchase money obligations incurred in the ordinary course, (4) earn outs, purchase price holdbacks or similar obligations, (5) intercompany liabilities arising in the ordinary course of business, (6) Permitted Liens, (7) loans and advances made by Loan Parties having a term not exceeding 364 days (inclusive of any roll over or extension of terms) (such loans and advances, “Short Term Advances”) and (8) Indebtedness of any direct or indirect Parent Entity appearing on the balance sheet of such Person solely by reason of push down accounting under GAAP and (9) deferred payments in the ordinary course of business. The amount

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of any net obligation under any Hedge Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date.

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“Interest Coverage Ratio” means, as of any date, the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Interest Expense, in each case for the Test Period as of such date.

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“Letter of Credit Percentage” means, (a) initially with respect to each Issuing Bank, the percentage set forth next to each Issuing Bank’s name on Schedule 2.01 and (b) from time to time after the Fifth Amendment Effective Date with respect to any other Issuing Bank, a percentage to be agreed between the Borrower and such Issuing Bank.

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provided, in each case, that if such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately preceding such day.

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provided that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such amount exceeds $5,000,000 and (II) no such net cash proceeds shall constitute Net Cash Proceeds under this clause (a) in any fiscal year until the aggregate amount of all such net cash proceeds in such fiscal year exceeds $10,000,000 (and thereafter only net cash proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); and

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“Non-Bank Certificate” has the meaning specified in Section 3.01(b).

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in each case, after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of proceeds thereof and measured as of and for the Test Period immediately preceding the issuance, incurrence or assumption of such Indebtedness for which internal financial statements are available; and

Permitted Ratio Debt will be deemed to include any Registered Equivalent Notes issued in exchange therefor.

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Permitted Refinancing will be deemed to include any Registered Equivalent Notes issued in exchange therefor.

in each case, as determined in good faith by the Borrower and entered into after the Closing Date; provided that, (i) no Event of Default is continuing immediately prior to such transaction and immediately after giving effect thereto and (ii) the Borrower has determined in good faith that, after giving effect to such transaction, the security interests of the Lenders in the Collateral (taken as a whole) and the Guarantees of the Obligations (taken as a whole), in each case, would not be materially impaired as a result thereof, and such transaction would not otherwise be materially adverse to the Lenders.

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provided, that any such Indebtedness shall constitute Qualified Holding Company Debt only if immediately after giving effect to the issuance or incurrence thereof and the use of proceeds thereof, no Event of Default shall have occurred and be continuing.

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“Release/Subordination Event” has the meaning specified in Section 10.11(a)(i).

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provided that a Repricing Event shall not include any event described in clause (a) or (b) above that (x) is not consummated for the primary purpose of lowering the All-In Yield applicable to the 20242024-2 Refinancing Term Loans (as determined in good faith by the Borrower), or (y) that is consummated in connection with a Change of Control, Restricted Payment, Acquisition Transaction, dividend or other distribution or other debt repayment. For the avoidance of doubt, (A) any reduction in All-In Yield or fees pursuant to a leveraged-based or other applicable “step-down” that may, from time to time, be applicable to a Facility shall not constitute a Repricing Event and (B) any assignment of Loans to a Loan Party or Restricted Subsidiary in accordance with the terms of the Credit Agreement shall not constitute a Repricing Event.

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“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any of the Restricted Subsidiaries (in each case, solely to a holder of Equity Interests in such Person’s capacity as a holder of such Equity Interests other than dividends or distributions payable solely in Equity Interests (other than Disqualified Equity Interests) of the Borrower), or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Persons thereof). For the avoidance of doubt, neither (a) the payment of any Contractual Obligation that is based on, or measured with respect to the value of an Equity Interest, including any such Contractual Obligations constituting compensation arrangements, nor (b) payments with respect to Indebtedness (including Disqualified Equity Interests) shall be considered a Restricted Payment. The amount of any Restricted Payment not made in cash or Cash Equivalents shall be the fair market value of the securities or other property distributed by dividend or other otherwise.

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provided that for purposes of determining the Weighted Average Life to Maturity of (i) any Refinanced Debt, (ii) any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended, or (iii) any Term Loans for purposes of incurring any other Indebtedness (in any such case, the “Applicable Indebtedness”), the effects of any amortization payments or other prepayments made on such Applicable Indebtedness (including the effect of any prepayment on remaining scheduled amortization) prior to the date of the applicable modification, refinancing, refunding, renewal, replacement, extension or incurrence shall be disregarded.

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shall be calculated and measured in the manner prescribed by this Section 1.08; provided that notwithstanding anything to the contrary in clauses (b), (c), or (d) of this Section 1.08, when calculating the First Lien Net Leverage Ratio for purposes of Section 2.07(b)(i) and the Asset Sale Prepayment Percentage, the events described in this Section 1.08 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

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then, notwithstanding anything to the contrary in the Loan Documents, with respect to any calculation of a financial ratio or other measurement of financial or operational performance (including any such determination on a Pro Forma Basis), such financial ratio or other measurement of financial or operational performance will be calculated without regard to any other action, including actions taken in reliance upon a non-ratio-based basket;

For example, if the Borrower incurs Indebtedness under the Fixed Incremental Amount on the same date that it incurs Indebtedness under the Ratio Amount, then the First Lien Net Leverage Ratio and any other applicable ratio will be calculated with respect to such incurrence under the Ratio Amount without regard to any incurrence of Indebtedness under the Fixed Incremental Amount. Unless the Borrower elects otherwise, each Incremental Facility (or Incremental Equivalent Debt) shall be deemed incurred first under

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the Ratio Amount to the extent permitted (and calculated prior to giving effect to any substantially simultaneous incurrence of any Indebtedness based on a basket or exception that is not based on a financial ratio, including under any revolving facility and/or the Fixed Incremental Amount), with any balance incurred under the Fixed Incremental Amount. For purposes of determining compliance with Section 2.16, in the event that any Incremental Facility or Incremental Equivalent Debt (or any portion thereof) meets the criteria of Ratio Amount or Fixed Incremental Amount, the Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify (as if incurred at such time), such Indebtedness (or any portion thereof) in any manner that complies with Section 2.16, on the date of such classification or any such reclassification, as applicable.

in each case of clauses (i) through (iv), in connection with a Limited Condition Transaction or any other transaction taking in connection therewith (or pursuant thereto), the date of determination of such ratio, the accuracy of such representation or warranty (but taking into account any earlier date specified therein), whether any Default or Event of Default has occurred, is continuing or would result therefrom, or such compliance, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), shall be deemed to be either (A) the date a definitive agreement for such Limited Condition Transaction is entered into or, if applicable, the date with respect which the Borrower or a Restricted Subsidiary otherwise becomes obligated to consummate such Limited Condition Transaction (it being agreed that such date shall also be the relevant date to test the permissibility of any transactions to be incurred in connection with or pursuant to such Limited Condition Transaction) or (B) the date with respect to which notice is or is required to be delivered in connection with such Limited Condition Transaction or any other such transaction (such applicable date, the “LCT Test Date”). If, on a Pro Forma Basis after giving effect to such Limited Condition Transaction and such other transactions contemplated at such time to be entered into or consummated in connection therewith (including any incurrence of any Indebtedness and the use of proceeds thereof and calculated as if such Limited Condition Transaction or such other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date for which financial statements are available), the Borrower could have consummated the Limited Condition Transaction and the other transactions to be entered into in connection therewith on the relevant LCT Test Date in compliance with the Loan Documents or without such transactions resulting in a Default or Event of Default, such transactions shall be permitted to be consummated on any subsequent date. For the avoidance of doubt, (i) if any of such ratios, representations and warranties, absence of defaults, satisfaction of conditions precedent or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated Adjusted EBITDA), a change in facts and circumstances or other provisions at or prior to the consummation of the

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relevant Limited Condition Transaction, such ratios, representations and warranties, absence of defaults, satisfaction of conditions precedent and other provisions will not be deemed to have been exceeded, breached, or otherwise failed as a result of such fluctuations or changed circumstances solely for purposes of determining whether the Limited Condition Transaction and any related transactions is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related transactions. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other transaction or otherwise on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or (if applicable) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires (without consummation of such Limited Condition Transaction), at the Borrower’s election, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. For purposes of any calculation pursuant to this clause (f) of the Interest Coverage Ratio, Consolidated Interest Expense may be calculated using an assumed interest rate for the Indebtedness to be incurred in connection with such Limited Condition Transaction based on the indicative interest margin contained in any financing commitment documentation with respect to such Indebtedness or, if no such indicative interest margin exists, as reasonably determined by the Borrower in good faith.

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Upon the later of execution and delivery of a joinder to this Agreement by a Co-Borrower and the countersignature of the Administrative Agent thereto (which countersignature shall constitute an agreement that the requirements of clauses (ii) and (iii) above have been satisfied), each Co-Borrower agrees that it is jointly and severally liable for the obligations of each other Co-Borrower hereunder with respect to any Class of Loans on an individual tranche basis, including with respect to the payment of principal of and interest on all Loans on an individual tranche basis, the payment of amounts owing in respect of Letters of

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Credit and the payment of fees and indemnities and reimbursement of costs and expenses. Each Co-Borrower is accepting joint and several liability hereunder in consideration of the financial accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Co-Borrowers and in consideration of the undertakings of each of the Co-Borrowers to accept joint and several liability for the obligations of each of them. Each Co-Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, as a co-debtor, joint and several liability with each other Co-Borrower, with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all Obligations shall be the joint and several obligations of all of the Co-Borrowers without preferences or distinction among them. If and to the extent that any of the Co-Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of such Obligations in accordance with the terms thereof, then in each such event each other Borrower will make such payment with respect to, or perform, such Obligations. Each Co-Borrower further agrees that the Borrower will be such Co-Borrower’s agent for administrative, mechanical, and notice provisions in this Agreement and any other Loan Document and the Lenders and the Administrative Agent hereby agree that each Co-Borrower will have the same rights under the Loan Documents as if it is the Borrower and for any other purposes under the provisions of this Agreement, including the affirmative and negative covenants, each such Co-Borrower will be treated as a Restricted Subsidiary that is a Subsidiary Guarantor.

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As of the Sixth Amendment Effective Date, after giving effect to the Rollover Term Loans and the borrowing of the Sixth Amendment Refinancing Term Loans, the aggregate outstanding principal amount of the Term Loans is 922,687,500.

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The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable Issuing Bank. The Borrower shall be conclusively deemed to have waived any such claim against any Issuing Bank and its correspondents unless such notice is given as aforesaid.

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Each Prepayment Notice shall specify the date, amount and currency of such prepayment and the Class(es) and Type(s) of Loans to be prepaid, and the payment amount specified in each Prepayment Notice shall be due and payable on the date specified therein. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of a Prepayment Notice and of the amount of such Lender’s Pro Rata Share of such prepayment; provided, “non-consenting” Lenders may be repaid on a non-pro rata basis in connection with an Extension Offer or a Refinancing Amendment. Any prepayment of Loans shall be subject to Section 2.07(c). Revolving Loans and Incremental Revolving Loans prepaid pursuant to this subsection (a) may be reborrowed, subject to the terms and conditions of this Agreement.

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provided that, with respect to clauses (B) and (C) above, no Specified Event of Default has occurred and is continuing or would result therefrom and if the proceeds of any Revolving Loans are used to finance such prepayment pursuant to clauses (B) and (C), immediately after giving effect to such prepayment and on a Pro Forma Basis for such prepayment, the Borrower’s Liquidity equals or exceeds an amount equal to 33% of the Revolving Commitments (whether or not drawn) as of the date of determination. Any assignment of Loans pursuant to Section 11.07(l) shall be deemed not to constitute a voluntary prepayment; provided only that such assignments shall be applied to scheduled principal payments pursuant to clause (iii) above as if they were voluntary prepayments.

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in each case, (I) during such fiscal year or following the end of such fiscal year and prior to the date of such calculation (provided that, with respect to any such amount following the end of such fiscal year, such amount is not included in any calculation pursuant to this clause (b)(i) for the subsequent fiscal year), (II) to the extent such prepayments are not funded with the proceeds of Funded Debt and (III) including, for the avoidance of doubt, assignments of such Indebtedness to the Borrower or a Restricted Subsidiary (and prepayments of such Indebtedness below par) to the extent of the amount paid in connection with such assignment (or prepayment); provided that no such payment shall be required if such amount is equal to or less than the greater of (x) 20% of Fifth Amendment Effective Date EBITDA and (y) 20% of TTM Consolidated Adjusted EBITDA and only amounts in excess of such minimum will be subject to the repayment provisions of this Section 2.07(b)(i); provided further that if at the time that any such prepayment would be required, the Borrower is required to repay or repurchase or to offer to repurchase or repay Pari Passu Lien Debt pursuant to the terms of the documentation governing such Indebtedness with all or a portion of such Excess Cash Flow (such Pari Passu Lien Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable ECF Indebtedness”), then the Borrower may apply such Excess Cash Flow on a pro rata basis to the prepayment of the Term Loans and to the repayment or re-purchase of Other Applicable ECF Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.07(b)(i) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable ECF Indebtedness at such time, with it being agreed that the portion of Excess Cash Flow allocated to the Other Applicable ECF Indebtedness shall not exceed the amount of such Excess Cash Flow

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required to be allocated to the Other Applicable ECF Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof).

which in either case results in the receipt by the Borrower or such Loan Party of Net Cash Proceeds, the Borrower shall prepay on or prior to the date which is ten Business Days after the date of the receipt of such Net Cash Proceeds in excess of the greater of (x) 20% of the Fifth Amendment Effective Date EBITDA and (y) 20% of TTM Consolidated Adjusted EBITDA for any transaction or series of related transactions (and only amounts in excess of such minimum will be subject to the repayment provisions of this Section 2.07(b)(ii)), subject to Sections 2.07(b)(v) and 2.07(b)(vi), an aggregate principal amount of Term Loans (unless such prepayment is not required pursuant to the terms of such other Term Loans) equal to the Asset Sale Prepayment Percentage of such Net Cash Proceeds realized or received; provided that if at the time that any such prepayment would be required, the Borrower is required to repay or repurchase or to offer to repurchase or repay Pari Passu Lien Debt pursuant to the terms of the documentation governing such Indebtedness with the proceeds of such Disposition or Casualty Event (such Pari Passu Lien Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis to the prepayment of the Term Loans and to the repayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.07(b)(ii) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time, with it being agreed that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof); provided, further, that no prepayment shall be required pursuant to this Section 2.07(b)(ii) with respect to such portion of such Net Cash Proceeds that the Borrower intent to or may reinvest in accordance with this Section 2.07(b)(ii).

With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event that, in either case, is subject to the application of the foregoing provisions of this Section 2.07(b)(ii), at the option of the Borrower or any of its Restricted Subsidiaries, the Borrower or any of its Restricted Subsidiaries may (in lieu of making a prepayment pursuant to the foregoing provisions) elect to (I) reinvest an amount equal to all or any portion of such Net Cash Proceeds in assets used or useful for the business of the Borrower and its Restricted Subsidiaries (1) within eighteen months following receipt of such Net Cash Proceeds or (2) if the Borrower or any of its Restricted Subsidiaries enters into a legally binding commitment, or elects pursuant to the terms of a letter of intent, to reinvest such Net Cash Proceeds within eighteen months following receipt of such Net Cash Proceeds, no later than one hundred and eighty days after the end of such eighteen month period; provided that if any portion of such amount is not so reinvested by such dates, subject to Section 2.07(b)(v) and Section 2.07(b)(vi), an amount equal to the Asset Sale Prepayment Percentage of any such Net Cash Proceeds shall be applied within five Business Days

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after such dates to the prepayment of the Term Loans and Other Applicable Indebtedness as set forth above or (II) apply such Net Cash Proceeds to permanently repay indebtedness of Non-Loan Parties.

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Each payment or prepayment pursuant to the provisions of Section 2.07(b) shall be applied ratably among the Lenders of each Class holding the Loans being prepaid, in proportion to the principal amount held by each, and shall be applied as among the Term Loans or the Revolving Loans, as the case may be, being prepaid, (A) first, to prepay all Base Rate Loans and Alternative Currency Daily Rate Loans and (B) second, to the extent of any excess remaining after application as provided in clause (A) above, to prepay all SOFR Loans and Alternative Currency Term Rate Loans (and as among SOFR Loans and Alternative Currency Term Rate Loans, (1) first to prepay those SOFR Loans and Alternative Currency Term Rate Loans, if any, having Interest Periods ending on the date of such prepayment, and (2) thereafter, to the extent of any excess remaining after application as provided in clause (1) above, to prepay any SOFR Loans and Alternative Currency Term Rate Loans in the order of the expiration dates of the Interest Periods applicable thereto) and all SOFR Loans and Alternative Currency Term Rate Loans (and as among SOFR Loans and Alternative Currency Term Rate Loans, (1) first to prepay those SOFR Loans and Alternative Currency Term Rate Loans, if any, having Interest Periods ending on the date of such prepayment, and (2) thereafter, to the extent of any excess remaining after application as provided in clause (1) above, to prepay any SOFR Loans and Alternative Currency Term Rate Loans in the order of the expiration dates of the Interest Periods applicable thereto) on a pro rata basis.

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(i) on the last Business Day of each fiscal quarter (commencing with the second full fiscal quarter ending after the FifthSixth Amendment Effective Date) an aggregate principal amount equal to 0.25% of the aggregate principal amount of all 20242024-2 Refinancing Term Loans outstanding on the FifthSixth Amendment Effective Date (which payments shall be reduced as a result of the application of prepayments or assignments, including prepayments in accordance with the order of priority set forth in Section 2.07); provided that at the election of the Borrower (A) this clause (i) may be amended to increase the amortization in connection with the Borrowing of any Incremental Term Loans that constitute Pari Passu Lien Debt if and to the extent necessary so that such Incremental Term Loans and the applicable existing Term Loans form the same Class of Term Loans and to the extent possible, a “fungible” tranche, in each case, without the consent of any other party hereto, and (B) such amendments shall not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender prior thereto, and

(ii) the Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders on the Maturity Date for each Class of Term Loans, the aggregate principal amount of all such Term Loans outstanding on such date.

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All fees referred to in this Section 2.11(b) shall be paid to the Administrative Agent at the Administrative Agent’s Office and upon receipt, the Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof.

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Each payment of fees required above under this clause (c) on any Letters of Credit denominated in an Alternative Currency shall be made in Dollars.

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Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence the relevant Class of such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

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Any Extended Loans will constitute a separate tranche of Term Loans and/or Revolving Loans from the Term Loans and/or Revolving Loans held by Lenders that did not accept the applicable Extension Offer.

If the Total Utilization of Revolving Commitments exceeds the Revolving Commitment as a result of the occurrence of the Maturity Date with respect to any tranche of Revolving Commitments while an extended tranche of Revolving Commitments remains outstanding, the Borrower shall make such payments as are necessary in order to eliminate such excess on such Maturity Date.

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Thereafter, (x) the obligation of the Lenders to make or maintain SOFR Loans or Loans in the affected currencies, as applicable, or to convert Base Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans, Alternative Currency Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice.

Upon receipt of such notice, (i) the Borrower may revoke any pending request for a Borrowing of, or conversion to, or continuation of SOFR Loans or Alternative Currency Loans (to the extent of the affected SOFR Loans, Alternative Currency Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein and (ii) any outstanding SOFR Loans or Alternative Currency Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period.

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then, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the SOFR Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “SOFR Successor Rate).

If the SOFR Successor Rate is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.

Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then current SOFR Successor Rate in accordance with this Section 3.03 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such benchmark. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “SOFR Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.

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or if the events or circumstances of the type described in Section 3.03(c) (i) or (ii) have occurred with respect to the Successor Rate then in effect, then, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing the Relevant Rate for an Alternative Currency or any then current Successor Rate for an Alternative Currency in accordance with this Section 3.03 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative Currency for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative Currency for such benchmarks (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, a “Non-SOFR Successor Rate”, and collectively with the SOFR Successor Rate, each a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.

The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate.

Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero%, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

In connection with the implementation of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment

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implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.

For purposes of this Section 3.03, those Lenders that either have not made, or do not have an obligation under this Agreement to make, the relevant Loans in Dollars shall be excluded from any determination of Required Lenders.

and the result of any of the foregoing shall be to increase the cost to such Lender, such Issuing Bank of making or maintaining any Loan the interest on which is determined by reference to SOFR or the Alternative Currency Term Rate or, in the case of a Change in Law with respect to Taxes, making or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, such Issuing Bank or such other Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit, or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank (whether of principal, interest or any other amount)) then, from time to time within ten days after demand by such Lender or such Issuing Bank setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent) (provided that such calculation will not in an way require disclosure of confidential or price-sensitive information or any other information the disclosure of which is prohibited by law), the Borrower will pay to such Lender or such Issuing Bank such additional amount or amounts as will compensate such Lender or such Issuing Bank for such additional costs incurred or reduction suffered. No Lender or Issuing Bank shall request that the Borrower pay any additional amount pursuant to this Section 3.04(a) unless it shall concurrently make similar requests to other borrowers similarly situated and affected by such Change in Law and from whom such Lender or Issuing Bank is entitled to seek similar amounts.

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including any loss or expense (excluding loss of anticipated profits or margin) actually incurred by reason of the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Notwithstanding the foregoing, no Lender may make any demand under this Section 3.05 (i) with respect to the “floor” specified in the definition of Alternative Currency Term Rate, (ii) the Floor with respect to SOFR Loans or (iii) in connection with any prepayment of interest on Term Loans.

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Notwithstanding anything to the contrary contained above, any Lender that acts as an Issuing Bank may not be replaced hereunder at any time that it has any Letter of Credit outstanding hereunder unless arrangements reasonably satisfactory to such Issuing Bank (including the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer reasonably satisfactory to such Issuing Bank or the depositing of cash collateral into a cash collateral account in amounts and pursuant to arrangements reasonably satisfactory to such Issuing Bank) have been made with respect to each such outstanding Letter

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of Credit and the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 10.09.

In the event that (i) the Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of each Lender, all affected Lenders or all the Lenders or all affected Lenders with respect to a certain Class or Classes of the Loans and (iii) the Required Lenders, Required Revolving Lenders or Required Facility Lenders, as applicable, have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender.”

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

The obligation of each Lender to extend credit to the Borrower and of each Issuing Bank to issue Letters of Credit hereunder on the Closing Date is subject to the satisfaction, or due waiver in accordance with Section 11.01, of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Lenders:

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Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement or funded Loans hereunder shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

Subject to Section 1.08(f), each Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of Loans to another Type or a continuation of Alternative Currency Term Rate Loans or SOFR Loans) and each Issuance Notice submitted by the Borrower shall be deemed to be a representation and warranty that the condition specified in Sections 4.02(a) and (b) has been satisfied on and as of the date of the applicable Borrowing or issuance, amendment, renewal or extension of a Letter of Credit.

The Borrower represents and warrants each of the following to the Lenders, the Issuing Banks, the Administrative Agent and the Collateral Agent, in each case, to the extent and, unless otherwise specifically agreed by the Borrower, only on the dates required by Section 2.16, 4.01, 4.02, or 4.03, as applicable.

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except in each case referred to in clause (c), (d) or (e), to the extent that failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

except with respect to any breach, contravention or violation (but not creation of Liens) referred to in clauses (ii), (iii) and (iv), to the extent that such breach, contravention or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

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So long as the Termination Conditions have not been satisfied, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each of the Restricted Subsidiaries to:

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Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (i) the applicable financial statements of any direct or indirect parent of the Borrower that directly or indirectly holds all of the Equity Interests of the Borrower (such Person, a “Parent Entity”) or (ii) the Borrower’s or such entity’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of clauses (i) and (ii), (A) to the extent such information relates to a parent of the Borrower, such information is accompanied by supplemental financial information (which need not be audited) that explains in reasonable detail the differences between the information relating to the Borrower (or such parent), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand and (B) to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of the Borrower’s auditor on the Closing Date, any other independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any explanatory statement as to the Borrower’s ability to continue as a “going concern” or like qualification or exception (other than any such statement, qualification or exception resulting from or relating to (i) an actual or anticipated breach of a Financial Covenant, (ii) an upcoming maturity date or (iii) activities, operations, financial results or liabilities of any Person other than the Loan Parties and their Restricted Subsidiaries) or any qualification or exception as to the scope of such audit.

Any financial statements required to be delivered pursuant to this Section 6.01 shall not be required to contain purchase accounting adjustments to the extent it is not practicable to include any such adjustments in such financial statements.

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Documents required to be delivered pursuant to Section 6.01 or Section 6.02 (other than Section 6.02(a)) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website addresses listed on Schedule 11.02, or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.

The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may have personnel who do not wish to receive any information with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, that is not Public-Side Information, and who may be engaged in investment and other market-related activities with respect to such Person’s securities. The Borrower hereby agrees that (i) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof (and by doing so shall be deemed to have represented that such information contains only Public-Side Information); (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat such Borrower Materials as containing only Public-Side Information (provided, however, that to the

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extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.08); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public-Side Information”; and (iv) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public-Side Information.”

For the avoidance of doubt, the foregoing shall be subject to the provisions of Section 11.08.

Each notice pursuant to this Section 6.03 shall be accompanied by a written statement of a Responsible Officer of the Borrower (i) that such notice is being delivered pursuant to Section 6.03(a) or (b) (as applicable) and (ii) setting forth a summary description of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. For the avoidance of doubt, the foregoing shall be subject to the provisions of Section 11.08.

except in the case of clause (a) or (b), (i) in connection with a transaction permitted by the Loan Documents (including transactions permitted by Section 7.04 or Section 7.05) or (ii) to the extent that failure to do so would not reasonably be expected to have, individually or in the aggregate, resulted in a Material Adverse Effect.

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provided, that actions relating to Liens on real property are governed by Section 6.11(b) and not this Section 6.11(a).

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Notwithstanding anything to the contrary in any Loan Document, other than with respect to the Equity Interests and assets of a Foreign Subsidiary that becomes a Loan Party, neither Holdings, the Borrower, nor any Restricted Subsidiary will be required to, nor will the Administrative Agent or the Collateral Agent be authorized,

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the Loan Parties shall not be required to perform any period collateral reporting, if any, with any frequency greater than once per fiscal year (provided that this clause shall not limit the obligation of the Loan Parties to comply with Section 6.11).

The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time and a return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment in such Subsidiary. Except as set forth in this paragraph, no Investment will be deemed to exist or have been made, and no Indebtedness or Liens shall be deemed to have been incurred or exist, by virtue of a Subsidiary becoming an Excluded Subsidiary or an Excluded Subsidiary becoming a Restricted Subsidiary.

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So long as the Termination Conditions are not satisfied, the Borrower shall not (and, with respect to Section 7.11 only, Holdings shall not), nor shall the Borrower permit any Restricted Subsidiary to:

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For purposes of determining compliance with this Section 7.01, in the event that any Lien (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such Lien (or any portion thereof) in any manner that complies with this covenant on the date such Lien is incurred or such later time, as applicable; provided that all Liens created pursuant to the Loan Documents will be deemed to have been incurred in reliance on the exception in clause (a) or (b) above, respectively, and shall not be permitted to be reclassified pursuant to this paragraph. With respect to any Liens securing Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Lien securing the Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.

Any Lien incurred in compliance with this Section 7.01 after the Closing Date that is intended to be contractually secured on a pari passu basis with the Obligations will be subject to an Equal Priority Intercreditor Agreement, and any Lien incurred in compliance with this Section 7.01 on or after the Closing Date that is intended to be contractually secured on a junior basis will be subject to a Junior Lien Intercreditor Agreement.

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If any Investment is made in any Person that is not a Restricted Subsidiary on the date of such Investment and such Person subsequently becomes a Restricted Subsidiary, such Investment shall thereupon be deemed to have been made pursuant to Section 7.02(a)(i).

For purposes of determining compliance with this Section 7.02, in the event that any Investment (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time such Investment is made, divide, classify or reclassify, or at any later time divide, classify or reclassify, such Investment (or any portion thereof) in any manner that complies with this covenant on the date such Investment is made or such later time, as applicable.

The amount of any non-cash Investments will be the fair market value thereof at the time made. To the extent any Investment in any Person is made in compliance with this Section 7.02 in reliance on a category above that is subject to a Dollar-denominated restriction on the making of Investments and, subsequently, such Person returns to the Borrower, any other Loan Party or, to the extent applicable, any Restricted Subsidiary all or any portion of such Investment (in the form of a dividend, distribution, liquidation or otherwise but excluding intercompany Indebtedness), such return shall be deemed to be credited to the Dollar-denominated category against which the Investment is then charged (but in any event not in an amount that would result in the aggregate dollar amount able to be invested in reliance on such category to exceed such Dollar-denominated restriction). To the extent the category subject to a Dollar-denominated restriction is also subject to a percentage of TTM Consolidated Adjusted EBITDA restriction which, at the date of determination, produces a numerical restriction that is greater than such Dollar amount, then such Dollar equivalent shall be deemed to be substituted in lieu of the corresponding Dollar amount in the foregoing sentence for purposes of determining such credit.

For purposes of determining compliance with any Dollar-denominated (or percentage of TTM Consolidated Adjusted EBITDA, if greater) restriction on the making of Investments, the Dollar equivalent amount of the Investment denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Investment was made.

Notwithstanding the foregoing, in no event shall any Loan Party be permitted to make Investments constituting Material Intellectual Property to any Unrestricted Subsidiary if, following such Investment the Loan Parties cease to have use of such Material Intellectual Property or such Investment is reasonably expected to result in a Material Adverse Effect.

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For purposes of determining compliance with this Section 7.03,

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it being agreed that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;

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(this clause (j), the “General Asset Sale Basket”);

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To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, and without limiting the provisions of Section 10.11 the Administrative Agent shall be authorized to, and shall, take any actions reasonably requested by the Borrower in order to effect the foregoing (and the Lenders hereby authorize and direct the Administrative Agent to conclusively rely on any such certification by the Borrower in performing its obligations under this sentence).

Notwithstanding the foregoing, in no event shall any Loan Party be permitted to Dispose of any Material Intellectual Property to any Unrestricted Subsidiary if, following such Disposition the Loan Parties cease to have use of such Material Intellectual Property or such Disposition is reasonably expected to result in a Material Adverse Effect.

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provided, in each case, that no Specified Event of Default shall have occurred and be continuing or would result therefrom (except to the extent such Restricted Payment is funded exclusively in reliance on clauses (c) and/or (d) of the definition of Available Amount);

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The amount set forth in Section 7.06(o)(i) may, in lieu of Restricted Payments, be utilized by the Borrower or any Restricted Subsidiary to (i) make or hold any Investments without regard to Section 7.02 or (ii) prepay, repay redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Junior Financing without regard to Section 7.10(a).

For purposes of determining compliance with this Section 7.06, in the event that any Restricted Payment (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time of such Restricted Payment is made, divide, classify or reclassify, or at any later time divide, classify, or reclassify, such Restricted Payment (or any portion thereof) in any manner that complies with this covenant on the date such Restricted Payment is made or such later time, as applicable.

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provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations that:

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provided, however, that each of the following shall be permitted: payments of regularly scheduled principal and interest (including default interest and any AHYDO catch-up payment) on Junior Financing, payments of closing and consent fees related to Junior Financing, indemnity and expense reimbursement payments in connection with Junior Financing, and mandatory prepayments, mandatory redemptions and mandatory purchases, in each case pursuant to the terms Junior Financing Documentation.

The amount set forth in Section 7.10(a)(v)(A) may, in lieu of prepayments, repayments, redemptions, purchases, defeasance or satisfaction of any Junior Financing, be utilized by the Borrower or any Restricted Subsidiary to make or hold any Investments without regard to Section 7.02.

For purposes of determining compliance with this Section 7.10(a), in the event that any prepayment, repayment, redemption, purchase, defeasance or satisfaction (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time of such prepayment, repayment, redemption, purchase, defeasance or satisfaction is made, divide, classify, or reclassify, or at any later time divide, classify or reclassify, such prepayment, repayment, redemption, purchase, defeasance or satisfaction (or any portion thereof) in any manner that complies with this covenant on the date it was made or such later time, as applicable.

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it being agreed that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement.

So long as the Termination Conditions have not been satisfied, the Borrower and each of the Restricted Subsidiaries covenant and agree for the benefit of the Revolving Lenders that:

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provided that (A) this clause (e) shall not apply to (1) any Indebtedness under a Loan Document, (2) terminations or similar events with respect to Indebtedness under Hedge Agreements, or (3) any Indebtedness held exclusively by Affiliates, (B) clause (e)(ii) shall not apply (i) to any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (ii) to the failure to observe or perform any covenant that requires compliance with any measurement of financial or operational performance (including any leverage, interest coverage or fixed charge ratio or minimum EBITDA, a “Financial Covenant”) unless and until the holders of such Indebtedness have terminated all commitments (if any) and accelerated all obligations with respect thereto, and (C) clause (e)(ii) shall only apply if such failure is unremedied and is not waived by the holders of such Indebtedness prior to the termination of the Commitments and acceleration of the Loans pursuant to Section 9.02; or

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provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under any Debtor Relief Law, the Commitments of each Lender and the obligations of each Issuing Bank to issue Letters of Credit shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable and the obligation of the Borrower to Cash Collateralize the Letters of Credit as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

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provided that, with respect to a Default or Event of Default for a failure to comply with Section 6.03(a), the foregoing shall not apply if the Borrower knowingly failed to provide notice required pursuant to Section 6.03(a).

For the avoidance of doubt, (i) unless a Default or an Event of Default has occurred and is continuing, the Administrative Agent (and each other Secured Party) agrees that it shall not take any of the actions

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described in this Section 9.02 or bring any other action or proceeding under the Loan Documents or with respect to the Obligations and (ii) no premium in respect of the Obligations shall be payable as a result of any Default or Event of Default, except as may be expressly set forth in this Agreement.

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 11.04 and amounts payable under Article III) payable to the Administrative Agent and the Collateral Agent in their capacities as such;

Second, to payment in full of Unfunded Advances/Participations (the amounts so applied to be distributed between or among, as applicable, the Administrative Agent and the Issuing Banks pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution);

Third, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, Letter of Credit fees, Obligations under Secured Hedge Agreements and Cash Management Obligations) payable to the Lenders and the Issuing Banks (including Attorney Costs payable under Section 11.04 and amounts payable under Article III) ratably among them in proportion to the amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees and interest on the Loans and Letter of Credit Usage, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause Fourth held by them;

Fifth, (a) to payment of that portion of the Obligations constituting unpaid principal of the Loans, the Letter of Credit Usage and the Obligations under Secured Hedge Agreements and Cash Management Obligations and (b) to Cash Collateralize Letters of Credit (to the extent not otherwise Cash Collateralized pursuant to the terms of this Agreement) (in an amount equal to 103% of the maximum face amount of all outstanding Letters of Credit) and to further permanently reduce the Revolving Commitments by the amount of such Cash Collateralization, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fifth held by them; provided that (i) any such amounts applied pursuant to the foregoing subclause (b) shall be paid to the Administrative Agent for the ratable account of the Issuing Banks to Cash Collateralize such Letters of Credit, (ii) subject to Sections 2.04 and 2.19, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to this clause Fifth shall be applied to satisfy drawings under such Letters of Credit as they occur and (c) upon the expiration of any Letter of Credit, the pro rata share of Cash Collateral attributable to such expired Letter of Credit shall be applied by the Administrative Agent in accordance with the priority of payments set forth in this Section 9.03;

Sixth, to the payment of all other Obligations that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

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Last, the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by Law.

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The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.02 and 11.01) or (ii) in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by the Borrower or a Lender.

No Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other

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Loan Document, (ii) the contents of any certificate, report, statement or agreement or other document delivered hereunder or thereunder or in connection herewith or therewith or referred to or provided for in, or received by the Administrative Agent under or in connection with this Agreement or any other Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default (including compliance with the terms and conditions of Section 11.07(h)(iii) or (h)(iv)), (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof.

Each Agent shall be fully justified in failing or refusing to take any action that is not required or explicitly approved by the Lenders under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Agents shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders; provided that the Agents shall not be required to take any action that, in their opinion or in the opinion of their counsel, may expose such Agent to liability or that is contrary to any Loan Document or Applicable Law.

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Each Agent hereby agrees to act in its capacity as such upon the express conditions contained herein and the other Loan Documents, as applicable. Anything herein to the contrary notwithstanding, none of the Lead Arrangers or the other Agents listed on the cover page hereof (or any of their respective Affiliates) shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except (x) in its capacity, as applicable, as the Administrative Agent, the Collateral Agent or a Lender hereunder and (y) as provided in Section 11.01(d) and the last sentence of Section 11.01, and such Persons shall have the benefit of this Article X. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any agency or fiduciary or trust relationship with any Lender, Holdings, the Borrower or any of their respective Subsidiaries. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. Any Agent may resign from such role at any time, with immediate effect, by giving prior written notice thereof to the Administrative Agent and Borrower.

(a) The Administrative Agent or the Collateral Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed), to appoint a successor, which shall be a Lender or a bank with an office in the United States, or an Affiliate of any such Lender or bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty days after the retiring Administrative Agent or Collateral Agent, as applicable, gives notice of its resignation, then the retiring Administrative Agent or Collateral Agent, as applicable, may on behalf of the Lenders, appoint a successor Administrative Agent or Collateral Agent, as applicable subject to the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed). If the Administrative Agent or Collateral Agent, as applicable, shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, (a) such resignation shall nonetheless become effective in accordance with such notice, (b) the retiring Administrative Agent or Collateral Agent, as applicable, shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent or Collateral Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor of such Agent is appointed), (c) the Borrower shall be permitted to appoint a replacement Administrative Agent or Collateral Agent, which shall be a Lender or a bank with an office in the United States, or an Affiliate of any such Lender or bank with an office in the United States; provided that the Required Lenders shall be permitted to appoint a successor agent at any time after the Borrower appoints such replacement Administrative Agent or Collateral Agent, and (d) until such time as the Required Lenders appoint a successor Administrative Agent, (i) all communications

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provided to be made to the retiring Administrative Agent or Collateral Agent, as applicable, shall instead be made to each Lender directly (provided such Lender has provided the Borrower the information necessary to do so), (ii) all payments provided to be made by or through the retiring Administrative Agent or Collateral Agent, as applicable, shall instead be made to each Lender directly (provided such Lender has provided the Borrower the information necessary to do so), except for any indemnity payments or other amounts owed to the retiring Administrative Agent or Collateral Agent, as applicable, and (iii) all determinations provided to be made by the retiring Administrative Agent or Collateral Agent, as applicable, shall instead be made by the Required Lenders. If none of the Required Lenders, the Administrative Agent or the Borrower have appointed a successor Administrative Agent, the Required Lenders shall be deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent (subject to the proviso in the sentence above). Upon the acceptance of a successor’s appointment as Administrative Agent or Collateral Agent, as applicable, hereunder and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or appropriate, or as the Required Lenders may request, in order to perfect or continue the perfection of the Liens granted or purported to be granted by the Collateral Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent or Collateral Agent, as applicable (other than any rights to indemnity payments or other amounts owed to the retiring or retired Administrative Agent), and the retiring Administrative Agent or Collateral Agent, as applicable, shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 10.09). The fees payable by the Borrower to a successor Administrative Agent or Collateral Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article X, Section 11.04 and Section 11.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Agent-Related Persons in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Administrative Agent or Collateral Agent, as applicable.

 

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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent under Sections 2.11 and 11.04. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Administrative Agent, its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.11 and 11.04 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders or the Issuing Banks may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing Bank in any such proceeding.

The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations (as defined in the Security Agreement) pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (i) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (ii) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any Applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (A) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (B) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof) shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (g) of Section 11.01 of this Agreement, (C) the Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action and (D) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of

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another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

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In connection with any Lien Release Event, Release/Subordination Event, Guaranty Release Event or Release Action, each of the Collateral Agent and the Administrative Agent shall be entitled to rely and shall rely exclusively on an executed officer’s certificate of the Borrower (the “Release Certificate”) confirming that (a) such Lien Release Event, Release/Subordination Event or a Guaranty Release Event, as applicable, has occurred or will upon consummation of one or more identified transactions (an “Identified Transaction”) occur, (b) the conditions to any such Lien Release Event, Release/Subordination Event or Guaranty Release Event have been satisfied or will be satisfied upon consummation of an Identified Transaction, and (c) that any such Identified Transaction is permitted by (or not prohibited by) the Loan Documents. The Collateral Agent and the Administrative Agent will be fully exculpated from any liability and shall be fully protected and shall not have any liability whatsoever to any Secured Party as a result of such reliance or the consummation of any Release Action. A Release Certificate may be delivered in advance of the consummation of any applicable Identified Transaction.

Each Lender and each Secured Party irrevocably authorizes and irrevocably directs the Collateral Agent and the Administrative Agent to take the Release Actions and consents to reliance on the Release Certificate. The Secured Parties agree not to give any Agent any instruction or direction inconsistent with the provisions of this Section 10.11. Neither the Administrative Agent nor the Collateral Agent shall be responsible for, or have a duty to ascertain or inquire into, any statement in a Release Certificate, the compliance of any Identified Transaction with the terms of a Loan Document, any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or contained in any certificate prepared or delivered by any Loan Party in connection with the Collateral or compliance with the terms set forth above or in a Loan Document, nor shall the Administrative Agent or Collateral Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

Each relevant Agent, each Lender and each other Secured Party agrees that following its receipt of an applicable Release Certificate it will take all Release Actions promptly upon request of the Borrower and in any event not later than the date that is (i) the third Business Day following the date Release Certificate is delivered to the Administrative Agent and (ii) the date any applicable Identified Transaction described in the Release Certificate is consummated (such later date, the “Release Date”). Notwithstanding the foregoing, nothing set forth in this Section 10.11 shall relieve or release any Loan Party from any liability resulting from a Default or Event of Default that results from an Identified Transaction or misrepresentation or omission in any Release Certificate.

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(collectively, the “Collective Rights and Remedies”);

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shall not constitute such a reduction or postponement;

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Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient); and notices deposited in the United States mail with postage prepaid and properly addressed shall be deemed to have been given within three Business Days of such deposit; provided that no notice to any Agent shall be effective until received by such Agent. Notices and other communications delivered through electronic communications to the extent provided in sub clause (b) below, shall be effective as provided in such clause (b).

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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Article IX for the benefit of all the Lenders and the Issuing Banks; provided that the foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (ii) any Issuing Bank from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as an Issuing Bank) hereunder and under the other Loan Documents, (iii) any Lender from exercising setoff rights in accordance with Section 11.09 (subject to the terms of Section 2.15) or (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf

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during the pendency of a proceeding relative to the Borrower under any Debtor Relief Law; provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (A) the Required Lenders shall have the rights otherwise provided to the Administrative Agent pursuant to Article IX and (B) in addition to the matters set forth in clauses (ii), (iii) and (iv) of the preceding proviso and subject to Section 2.15, any Lender may, with the consent of the Required Lenders, enforce any rights or remedies available to it and as authorized by the Required Lenders.

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provided that such indemnity shall not, as to any Indemnitee, be available to the extent that a court of competent jurisdiction determines in a final-non-appealable judgment that any such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (i) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Related Indemnified Person of such Indemnitee, (ii) a material breach of any obligations of such Indemnitee under any Loan Document by such Indemnitee or Related Indemnified Person, or (iii) any dispute solely among Indemnitees or of any Related Indemnified Person of such Indemnitee other than any claims against an Indemnitee in its capacity or in fulfilling its role as the Administrative Agent, the Collateral Agent, an Issuing Bank, or a Lead Arranger (or other Agent role) under the Facility and other than any claims arising out of any act or omission of the Borrower or any of its Affiliates. To the extent that the undertakings to indemnify and hold harmless set forth in this Section 11.05 may be unenforceable in whole or in part because they are violative of any Applicable Law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, except to the extent resulting from the willful misconduct, bad faith or gross negligence of such Indemnitee or any Related Indemnified Person (as determined by a final and non-appealable judgment of a court of competent jurisdiction), nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee

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to a third party). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 11.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 11.05 (after the determination of a court of competent jurisdiction, if required pursuant to the terms of this Section 11.05) shall be paid within twenty Business Days after written demand therefor. The agreements in this Section 11.05 shall survive the resignation of the Administrative Agent, the Collateral Agent, or any Issuing Bank, replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. This Section 11.05 shall not apply to Taxes, except it shall apply to any Taxes that represent losses, claims, damages, etc. arising from a non-Tax claim (including a value added Tax or similar tax charged with respect to the supply of legal or other services).

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Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Agent-Related Persons of each of the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

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To the extent that any assignment is purported to be made to a Disqualified Lender (notwithstanding clause (E) of the foregoing sentence), such Disqualified Lender shall be required immediately (and in any event within five Business Days) to assign all Loans and Commitments then owned by such Disqualified Lender to another Lender (other than a Defaulting Lender) or Eligible Assignee (and the Borrower shall be entitled to seek specific performance in any applicable court of law or equity to enforce this sentence).

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Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section (and, in the case of an Affiliated Lender or a Person that, after giving effect to such assignment, would become an Affiliated Lender, subject to the requirements of clause (h) of this Section), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement (except in the case of an assignment to or purchase by Holdings, the Borrower or any of Holdings’ Subsidiaries) and, to the extent of the interest assigned by such Assignment and Assumption and as permitted by this Section 11.07, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and circumstances occurring prior to the effective date of such assignment); provided that anything contained in any of the Loan Documents to the contrary notwithstanding, each Issuing Bank shall continue to have all rights and obligations with respect to any Letters of Credit issued by it until the cancellation or expiration of such Letters of Credit and the reimbursement of any amounts drawn thereunder. Upon request, and the surrender by the assigning Lender of its applicable Notes, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

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Each Affiliated Lender and each Affiliated Debt Fund agrees to notify the Administrative Agent promptly (and in any event within ten Business Days) if it acquires any Person who is also a Lender, and each Lender agrees to notify the Administrative Agent promptly (and in any event within ten Business Days) if it becomes an Affiliated Lender or an Affiliated Debt Fund. Such notice shall contain the type of information required and be delivered to the same addressee as set forth in Exhibit D-2.

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In addition, each of the Administrative Agent, the Collateral Agent, the Lead Arrangers, the Issuing Banks and the Lenders may disclose the existence of this Agreement and the information about this Agreement to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans, market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent, the Collateral Agent, the Lead Arrangers, the Issuing

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Banks and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.

For purposes of this Section 11.08, “Information” means all information received from or on behalf of any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their respective businesses, other than any such information that is available to the Administrative Agent, the Collateral Agent or any Lender on a non-confidential basis prior to disclosure by any Loan Party or any Subsidiary thereof; it being understood that all information received from Holdings, the Borrower or any Subsidiary after the date hereof shall be deemed confidential unless such information is clearly identified at the time of delivery as not being confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so in accordance with its customary procedures if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each of the Administrative Agent, the Collateral Agent, the Lead Arrangers and the Lenders acknowledges that (A) the Information may include Private-Side Information concerning Holdings, the Borrower or a Subsidiary, as the case may be, (B) it has developed compliance procedures regarding the use of Private-Side Information and (C) it will handle such Private-Side Information in accordance with Applicable Law, including United States Federal and state securities Laws.

Notwithstanding anything to the contrary therein, nothing in any Loan Document shall require Holdings or any of their subsidiaries to provide information (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure is prohibited by Applicable Law, (iii) that is subject to attorney client or similar privilege or constitutes attorney work product or (iv) the disclosure of which is restricted by binding agreements not entered into primarily for the purpose of qualifying for the exclusion in this clause (iv).

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Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

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provided that (A) the Commitment of any Disqualified Lender may not be increased or extended without the consent of such Disqualified Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Disqualified Lender more adversely than other affected Lenders shall require the consent of such Disqualified Lender.

Each Lender that is not an Unrestricted Lender that delivers a written consent to any amendment, waiver or consent pursuant to Section 11.01 or under any other Loan Document shall concurrently deliver (or in the absence of any written Net Short Representation will be deemed to have delivered, concurrently with providing such consent) to the Borrower (with a copy to the Administrative Agent) a Net Short Representation.

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[SIGNATURE PAGES INTENTIONALLY OMITTED.]

 

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Exhibit B

CONSENT TO SIXTH AMENDMENT TO CREDIT AGREEMENT

Existing Term Lenders

________________________________________,
(type name of the legal entity)

By:
Name:
Title:

If a second signature is necessary:

By:
Name:
Title:

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v3.24.3

Document And Entity Information	Nov. 26, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Nov. 26, 2024
Entity Registrant Name	Mister Car Wash, Inc.
Entity Central Index Key	0001853513
Entity Emerging Growth Company	false
Entity File Number	001-40542
Entity Incorporation, State or Country Code	DE
Entity Tax Identification Number	47-1393909
Entity Address, Address Line One	222 E. 5th Street
Entity Address, City or Town	Tucson
Entity Address, State or Province	AZ
Entity Address, Postal Zip Code	85705
City Area Code	(520)
Local Phone Number	615-4000
Entity Information, Former Legal or Registered Name	N/A
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common stock, par value $0.01 per share
Trading Symbol	MCW
Security Exchange Name	NYSE

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