Camping World Holdings, Inc 8-K, filed Feb 19, 2025
Camping World Holdings, Inc. (CWH)
About this 8-K
Camping World Holdings, Inc filed this 8-K on February 19, 2025.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact Name of Registrant as Specified in its Charter)
| | |||
(State or Other Jurisdiction of Incorporation) | | (Commission File Number) | | (IRS Employer Identification No.) |
(Address of principal executive offices) (Zip Code) |
Registrant’s telephone number, including area code ( |
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On February 18, 2025, FreedomRoads, LLC (the “Floor Plan Borrower”), an indirect subsidiary of Camping World Holdings, Inc. (the “Company” or “our”), Bank of America, N.A., as administrative agent and letter of credit issuer, and JP Morgan Chase Bank, N.A., as syndication agent, and the other lenders party thereto, entered into a ninth amended and restated credit agreement (the “Floor Plan Facility Amendment”), which amended and restated the previous eighth amended and restated credit agreement, as amended, governing our floor plan facility (the “Existing Floor Plan Facility” and, as amended, the “Floor Plan Facility”) entered into with Bank of America, N.A., as administrative agent, and other lenders party thereto, as amended from time to time. Since 2005, the Company has used the Floor Plan Facility to finance substantially all of its new and certain of its used RV inventory. The Floor Plan Facility also provides for a revolving line of credit (the “Revolving Credit Loans”), the proceeds of which may be used for general corporate purposes.
Pursuant to the Floor Plan Facility Amendment, the Floor Plan Facility now allows the Floor Plan Borrower to borrow (a) up to $2.15 billion under a floor plan facility, an increase from $1.85 billion under the Existing Floor Plan Facility, (b) up to $45.0 million under a letter of credit facility, an increase from $30.0 million under the Existing Floor Plan Facility, and (c) up to a maximum amount outstanding of $70.0 million under the revolving line of credit, the same maximum amount allowed under the Existing Floor Plan Facility. The Floor Plan Facility Amendment also includes an uncommitted accordion feature allowing the Floor Plan Borrower, at its option, to increase the aggregate amount of the floor plan facility in $50 million increments up to a maximum amount of $300 million. In addition, the maturity of the Floor Plan Facility was extended to February 18, 2030 from September 30, 2026; provided, however, if on March 5, 2028, any of the term loans in the Credit Agreement by and between CWGS Group, LLC and the lenders and other parties thereto governing the senior secured credit facilities have not been repaid, refinanced, defeased, or the maturity date therefore has not been extended to at least 180 days after February 18, 2030, then the maturity date shall be March 5, 2028.
Pursuant to the Floor Plan Facility Amendment, the Floor Plan Facility may continue to be used to finance (i) up to 100% of the Company’s new RV inventory and (ii) various percentages of the Company’s used RV inventory, as determined by reference to the most recently published National Automobile Dealers Association RV Industry Appraisal Guide. Additionally, the Company may borrow, repay and reborrow Revolving Credit Loans for general corporate purposes. Pursuant to the Floor Plan Facility Amendment, at the Company’s option, the floor plan notes payable, and borrowings for letters of credit, in each case, under the Floor Plan Facility bear interest at a rate per annum equal to (a) the floating SOFR plus a SOFR adjustment of 0.11% plus the applicable rate of 1.90% to 2.50% determined based on the Floor Plan Borrower’s consolidated current ratio, or, (b) the base rate plus the applicable rate of 0.40% to 1.00% determined based on the Floor Plan Borrower’s consolidated current ratio.
Pursuant to the Floor Plan Facility Amendment, borrowings under our Floor Plan Facility for Revolving Credit Loans bear interest at a rate per annum equal to, at our option, either: (a) the floating SOFR plus a SOFR adjustment of 0.11% plus 2.25%, in the case of floating SOFR rate loans, or (b) a base rate determined by reference to the greatest of: (i) the Bank of America prime rate the federal funds rate plus 0.50%, (ii) the prime rate published by Bank of America, N.A. and (iii) the floating BSBY rate plus 1.75%, plus 0.75%, in the case of base rate loans. The Floor Plan Facility contains certain events of default, including payment defaults, failure to perform or observe covenants, cross-defaults with certain other events of default in connection with our other indebtedness, a change of control or certain bankruptcy events, among others.
Borrowings under the Floor Plan Facility will continue to be guaranteed by FreedomRoads Intermediate Holdco, LLC (the direct parent of the Floor Plan Borrower) and certain subsidiary guarantors (collectively, the “Guarantors”). These floor plan arrangements grant the administrative agent a first priority security interest in all of the property of the Floor Plan Borrower and the Guarantors, the financed RVs and the related sales proceeds.
This summary of the Floor Plan Facility Amendment does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Floor Plan Facility Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
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.
| CAMPING WORLD HOLDINGS, INC. | |
| | |
| | |
| By: | /s/ Thomas E. Kirn |
| Name: | Thomas E. Kirn |
| Title: | Chief Financial Officer |
Date: February 19, 2025
Exhibit 10.1
EXECUTION VERSION
Published CUSIP Number (Deal): 35644NAQ0
Published CUSIP Number (Floor Plan Facility): 35644NAS6
Published CUSIP Number (Revolving Credit Facility): 35644NAT4
Published CUSIP Number (Letter of Credit Facility): 35644NAR8
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 18, 2025
among
FREEDOMROADS, LLC,
as the Company and a Borrower,
Together with certain Subsidiaries of the Company listed from time to
time on Schedule 1.00 attached hereto as Borrowers or that become
Borrowers pursuant to Section 6.15(a) hereof,
BANK OF AMERICA, N.A.,
as Administrative Agent and L/C Issuer,
and
THE OTHER LENDERS PARTY HERETO
BOFA SECURITIES, INC.,
as Sole Bookrunner and Sole Lead Arranger
Table of Contents
Section | | Page |
| ARTICLE I | |
| DEFINITIONS AND ACCOUNTING TERMS | |
1.01 | Amendment and Restatement; Allocations | 1 |
1.02 | Defined Terms | 3 |
1.03 | Other Interpretive Provisions | 46 |
1.04 | Accounting Terms | 46 |
1.05 | Rounding | 48 |
1.06 | Times of Day; Rates | 48 |
1.07 | Letter of Credit Amounts | 48 |
ARTICLE II | ||
2.01 | Letter of Credit Facility. | 49 |
2.02 | Floor Plan Credit Facility. | 57 |
2.03 | Procedures for Request and Disbursement of Floor Plan Loans. | 60 |
2.04 | FLAIR Account. | 62 |
2.05 | Revolving Credit Facility. | 63 |
2.06 | Procedures for Request and Disbursement of Revolving Credit Loans. | 63 |
2.07 | Letter of Credit, Floor Plan Facility and Revolving Credit Facility Obligations Absolute | 64 |
2.08 | Prepayments | 64 |
2.09 | Curtailments; Mandatory Payments. | 65 |
2.10 | Termination or Reduction of Commitments. | 69 |
2.11 | Repayment of Loans and L/C Borrowings | 70 |
2.12 | Interest. | 70 |
2.13 | Fees | 71 |
2.14 | Computation of Interest; Interest Rate Election and Determination. | 71 |
2.15 | Evidence of Debt | 72 |
2.16 | Payments Generally; Administrative Agent’s Clawback. | 73 |
2.17 | Weekly Settlement of Floor Plan Loans. | 75 |
2.18 | Sharing of Payments by Lenders | 76 |
2.19 | Joint and Several Liability; Agency of the Company. | 77 |
2.20 | Cash Collateral. | 80 |
i
Table of Contents
(continued)
Section | | Page |
2.21 | Defaulting Lenders. | 82 |
2.22 | Increase in Floor Plan Commitments. | 84 |
ARTICLE III | ||
3.01 | Taxes. | 86 |
3.02 | Illegality | 90 |
3.03 | Inability to Determine Rates. | 91 |
3.04 | Increased Costs. | 93 |
3.05 | Mitigation Obligations; Replacement of Lenders. | 94 |
3.06 | Survival | 95 |
ARTICLE IV | ||
4.01 | Conditions of Initial Credit Extension | 95 |
4.02 | Conditions to all Credit Extensions | 98 |
ARTICLE V | ||
5.01 | Organization; Power and Authority | 99 |
5.02 | Authorization | 99 |
5.03 | Accurate Disclosure; No Material Adverse Effect | 99 |
5.04 | Affiliates and Directors & Officers | 99 |
5.05 | Financial Condition. | 100 |
5.06 | Compliance with Laws and Other Instruments | 100 |
5.07 | Governmental Authorizations, Etc | 100 |
5.08 | Litigation; Observance of Agreements, Statutes and Orders. | 101 |
5.09 | Taxes | 101 |
5.10 | Title to Property; Leases. | 101 |
5.11 | Licenses, Permits, Etc. | 102 |
5.12 | Employee Matters | 102 |
5.13 | Compliance with ERISA. | 102 |
5.14 | Use of Proceeds; Margin Regulations. | 103 |
5.15 | Existing Debt; Future Liens. | 104 |
5.16 | OFAC | 104 |
ii
Table of Contents
(continued)
Section | | Page |
5.17 | Status under Investment Company Act | 104 |
5.18 | Environmental Matters. | 104 |
5.19 | Collateral | 105 |
5.20 | Insurance | 105 |
5.21 | Bank Accounts | 105 |
5.22 | Patents, Trademarks, and Copyrights | 105 |
5.23 | Solvency | 106 |
5.24 | Compliance with Dealer Statutes | 106 |
5.25 | Anti-Corruption Laws | 106 |
5.26 | Affected Financial Institution | 106 |
5.27 | ERISA | 106 |
5.28 | Covered Entity | 106 |
5.29 | Beneficial Ownership | 106 |
ARTICLE VI | | |
6.01 | Financial and Business Information | 106 |
6.02 | Officer’s Certificate | 111 |
6.03 | Inspection. | 112 |
6.04 | Compliance with Law | 113 |
6.05 | Insurance | 113 |
6.06 | Maintenance of Properties, Environmental Matters, Etc | 114 |
6.07 | Preparation of Environmental Reports | 115 |
6.08 | Payment of Taxes and Claims | 115 |
6.09 | Corporate Existence; Books and Records | 116 |
6.10 | Landlord Consents | 116 |
6.11 | Cash Management | 116 |
6.12 | Delivery of Rental Floor Plan Unit Titles. | 118 |
6.13 | Use of Proceeds | 118 |
6.14 | Compliance with Dealer Statutes | 118 |
6.15 | Further Assurances. | 118 |
6.16 | Compliance with Terms of Leaseholds | 122 |
iii
Table of Contents
(continued)
Section | | Page |
6.17 | Material Contracts | 122 |
6.18 | Hurricane Program Sales to FEMA (or other State or Federal Agencies) | 122 |
6.19 | Hurricane Program Leases. | 123 |
6.20 | Supplier Contracts | 123 |
6.21 | Anti-Corruption Laws | 123 |
ARTICLE VII | | |
7.01 | Limitations on Debt | 124 |
7.02 | Limitation on Liens | 125 |
7.03 | Restricted Payments | 126 |
7.04 | Investments; Acquisition | 126 |
7.05 | Sale of Assets; Fundamental Changes. | 127 |
7.06 | Issuance of Common Stock | 128 |
7.07 | Liens on Real Property | 128 |
7.08 | Prohibition of Change in Fiscal Year | 129 |
7.09 | Sale or Discount of Receivables | 129 |
7.10 | Formation and Ownership of Subsidiaries; Certain Subsidiaries | 129 |
7.11 | Participation in Partnerships, Joint Ventures and LLCs | 129 |
7.12 | Use of Proceeds | 129 |
7.13 | Payments of Subordinated Debt | 129 |
7.14 | No Amendment of Organization Documents | 129 |
7.15 | Amendments to Other Documents | 129 |
7.16 | Transactions with Affiliates | 130 |
7.17 | Line of Business | 130 |
7.18 | Termination of Pension Plans | 130 |
7.19 | Compensation and Pension Plans | 130 |
7.20 | Sanctions | 130 |
7.21 | Burdensome Agreements | 131 |
7.22 | Consolidated Current Ratio | 131 |
7.23 | Fixed Charge Coverage Ratio | 131 |
7.24 | Anti-Corruption Laws | 131 |
iv
Table of Contents
(continued)
Section | | Page |
| ARTICLE VIII | |
| EVENTS OF DEFAULT AND REMEDIES | |
8.01 | Events of Default | 131 |
8.02 | Remedies Upon an Event of Default. | 133 |
8.03 | Application of Funds | 135 |
ARTICLE IX | | |
9.01 | Appointment and Authority | 139 |
9.02 | Rights as a Lender | 139 |
9.03 | Exculpatory Provisions | 140 |
9.04 | Reliance by Administrative Agent | 141 |
9.05 | Delegation of Duties | 141 |
9.06 | Resignation of Administrative Agent. | 141 |
9.07 | Non-Reliance on the Administrative Agent, the Arranger and the Other Lenders | 143 |
9.08 | Administrative Agent May File Proofs of Claim; Credit Bidding | 143 |
9.09 | Collateral and Guaranty Matters | 145 |
9.10 | Secured Cash Management Agreements and Secured Hedging Agreements | 146 |
9.11 | No Other Duties, Etc | 146 |
9.12 | Certain ERISA Matters. | 146 |
9.13 | Recovery of Erroneous Payments | 147 |
ARTICLE X | | |
10.01 | Amendments, Etc | 148 |
10.02 | Notices; Effectiveness; Electronic Communications. | 150 |
10.03 | No Waiver; Cumulative Remedies; Enforcement | 152 |
10.04 | Expenses; Indemnity; Damage Waiver. | 153 |
10.05 | Payments Set Aside | 155 |
10.06 | Successors and Assigns. | 155 |
10.07 | Treatment of Certain Information; Confidentiality | 160 |
10.08 | Right of Setoff | 161 |
10.09 | Interest Rate Limitation | 161 |
10.10 | Integration; Effectiveness | 161 |
v
Table of Contents
(continued)
Section | | Page |
10.11 | Survival of Representations and Warranties | 162 |
10.12 | Severability | 162 |
10.13 | Replacement of Lenders | 162 |
10.14 | Governing Law; Jurisdiction; Etc. | 163 |
10.15 | WAIVER OF JURY TRIAL | 164 |
10.16 | California Judicial Reference | 164 |
10.17 | No Advisory or Fiduciary Responsibility | 165 |
10.18 | Electronic Execution; Electronic Records; Counterparts | 165 |
10.19 | USA PATRIOT Act Notice | 166 |
10.20 | Time of the Essence | 166 |
10.21 | Reserved. | 166 |
10.22 | Keepwell | 167 |
10.23 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 168 |
10.24 | ENTIRE AGREEMENT | 168 |
10.25 | Acknowledgement Regarding Any Supported QFCs | 168 |
vi
SCHEDULES AND EXHIBITS
SCHEDULES:
1.00Subsidiary Borrowers
1.01-AExisting Commitments and Applicable Percentages
1.01-BEffective Date Commitments and Applicable Percentages
1.02-AExisting Letters of Credit
1.02-BManufacturer Categories as of the Effective Date
5.04(a)Ownership of the Obligated Parties
5.04(b)Directors and Officers of Each Borrower
5.04(c)Other Subsidiary Matters
5.13(d)Pension Plans
5.13(e)Other Post-Employment Benefit Plans
5.15Existing Debt and Liens; Existing Investments
5.22Patents, Trademarks and Copyrights
7.21Burdensome Agreements
10.02Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS Form of:
A-1Floor Plan Note
A-2Revolving Credit Note
BCompliance and Borrowing Base Certificate
CSeventh Amended and Restated Holding Company Guaranty
DSeventh Amended and Restated Subsidiary Guaranty
EEighth Amended and Restated Security Agreement
FSeventh Amended and Restated Pledge Agreement
GAssignment of Rights and Proceeds; Notice of Assignment of Claims
HCollateral Assignment of Leases
ISubordination Agreement
JBorrower’s Counsel Opinion
K-1Assignment and Assumption
K-2Administrative Questionnaire
LCredit Agreement Joinder Agreement
M(1-4)Forms of U.S. Tax Compliance Certificates
vii
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
This NINTH AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of February 18, 2025, among FREEDOMROADS, LLC, a Minnesota limited liability company (the “Company”), the Subsidiaries of the Company listed from time to time on Schedule 1.00 attached hereto or that become Borrowers pursuant to Section 6.15(a)(i) (in each case, such Subsidiaries together with the Company, being referred to collectively as the “Borrowers” and each individually as a “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and each individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
RECITALS
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants and agreements herein contained, the parties hereto hereby agree as follows:
1
2
“Acceptable Bank” means any bank or trust company (i) organized under the laws of the United States of America or any state thereof, (ii) that has capital, surplus and undivided profits aggregating at least $250,000,000, and (iii) whose long-term unsecured debt obligations (or the long-term unsecured debt obligations of the bank holding company owning all of the Equity Interests of such bank or trust company) shall have been given a rating of “A” or better by S&P, and “A2” or better by Moody’s.
“Account Control Documentation” means any agreement in form and substance satisfactory to the Administrative Agent, entered into by the Administrative Agent, any Loan Party and a Third Party Bank with respect to a lockbox, deposit or other account maintained by any Borrower with such Third Party Bank, to give the Administrative Agent “control” (as defined in §9-104 of the UCC) over such account.
“Account Debtor” means each Person obligated in any way on or in connection with an Account.
“Accounts” means all of each Loan Party’s now owned or hereafter acquired or arising accounts receivable evidencing the right of any Loan Party to payment for Floor Plan Vehicles or Units, or other inventory sold or leased (whether or not evidenced by instruments, notes, drafts, acceptances, documents, or chattel paper), whether or not earned by performance.
“Acquisition” means the purchase or other acquisition of all of the Equity Interests in, or all or substantially all of the property of, any Person that, upon the consummation thereof, will be wholly-owned directly by a Loan Party (including as a result of a merger or consolidation).
3
“Acquisition Closing Date” means, with respect to any Acquisition, the date of consummation of such Acquisition.
“Acquisition Current Ratio” means, with respect to any Acquisition, the Consolidated Current Ratio as of the last day of the calendar month most recently ended prior to the Acquisition Closing Date for such Acquisition for which a Monthly Compliance and Borrowing Base Certificate has been delivered (or, if not timely delivered, the last day of the calendar month most recently ended prior to the Acquisition Closing Date for such Acquisition for which a Monthly Compliance and Borrowing Base Certificate is required to be delivered) pursuant to Section 6.02, such ratio to be calculated on a pro forma basis (giving effect to the consummation of such Acquisition and any other Acquisition that has occurred since such month or that is expected to occur on such Acquisition Closing Date).
“Additional Insureds” has the meaning specified in Section 6.05(a).
“Adjustment Date” has the meaning specified in Section 2.14(a).
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Account” means Bank of America, N.A. Account Number: 3751815004.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Company and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit K-2 or any other form approved by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agent Parties” has the meaning specified in Section 10.02(c).
“Agent’s Report” has the meaning specified in Section 2.17.
“Agreement” has the meaning specified in the introductory paragraph.
“A.M. Best” has the meaning specified in Section 6.05(a).
“Applicable Borrowing Base Percentage” means, with respect to any Specified New Floor Plan Unit as of any date of determination, the percentage equal to the then-applicable advance rate that would apply to such Specified New Floor Plan Unit pursuant to Section 2.02(b)(ii) if a Floor Plan Loan were to be advanced against such Specified New Floor Plan Unit on such date.
4
“Applicable Curtailment Date” means, with respect to any Floor Plan Vehicle or Unit and a Floor Plan Loan relating to such Floor Plan Vehicle or Unit, the date that a curtailment payment is due based on the following methodology: The phrase “Applicable Curtailment Date” is typically followed by a numeral, which represents the number of days after the Applicable Starting Date for the Floor Plan Vehicle or Unit. For example, “Applicable Curtailment Date 365” refers initially to a date (a “Target Date”) that is 365 days after the date of the Applicable Starting Date for the Floor Plan Vehicle or Unit. However, the Target Date is not necessarily the actual payment date. The actual curtailment payment date is the 15th day of the month following the calendar month that contains the Target Date. Again, as an example, if the Applicable Starting Date for a Floor Plan Vehicle or Unit was January 20, 2025, then “Applicable Curtailment Date 365” for that unit would be February 15, 2026.
“Applicable FLAIR Maximum Percentage” means 35%.
“Applicable Percentage” means, the following, subject to adjustment as provided in Section 2.21, (a) in respect of the Letter of Credit Facility (including in respect of any Letters of Credit issued thereunder and each L/C Lender’s obligation to purchase an irrevocable and unconditional participation in each such Letter of Credit), with respect to any L/C Lender at any time, the percentage (carried out to the ninth decimal place) of the Letter of Credit Facility represented by such L/C Lender’s Letter of Credit Commitment at such time, (b) in respect of the Floor Plan Facility, with respect to any Floor Plan Lender at any time, the percentage (carried out to the ninth decimal place) of the Floor Plan Facility represented by such Floor Plan Lender’s Floor Plan Commitment, and (c) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment. If the obligation of the L/C Issuer to make L/C Credit Extensions, the commitment of each Floor Plan Lender to make Floor Plan Loans or the commitment of each Revolving Credit Lender to make Revolving Credit Loans have been terminated pursuant to Section 8.02 or if the Floor Plan Commitments have expired, then the Applicable Percentage of each L/C Lender in respect of the Letter of Credit Facility, or each Floor Plan Lender in respect of the Floor Plan Facility, or each Revolving Credit Lender in respect of the Revolving Credit Facility, shall be determined based on the Applicable Percentage of such Lender in respect of such Facility most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01-B or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, from time to time: (a) with respect to Floor Plan Loans, the Floor Plan Applicable Rate, (b) with respect to L/C Borrowings, 1.50%, (c) with respect to Letter of Credit Fees, 2.25% per annum, and (d) with respect to Revolving Credit Loans, the Revolving Credit Applicable Rate.
“Applicable Response Period” has the meaning specified in Section 2.22(a).
“Applicable Starting Date” means:
5
“Appropriate Lender” means, at any time, (a) with respect to the Floor Plan Facility, a Lender that has a Commitment with respect to such Facility or holds a Floor Plan Loan, (b) with respect to the Letter of Credit Facility, (i) the L/C Issuer and (ii) if any Existing Letters of Credit are outstanding or any Letters of Credit have been issued pursuant to Section 2.01, an L/C Lender and (c) with respect to the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Revolving Credit Loan.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” means BofA Securities, Inc., in its capacity as sole lead arranger and sole bookrunner.
“Asset Disposition” means any Transfer except a Transfer (so long as such Transfer is permitted under the Collateral Documents) made in the ordinary course of business and involving (i) only property that is inventory held for sale or lease or chattel paper related to the sale or lease of such inventory or (ii) de minimis Transfers of damaged or obsolete property of any of the Loan Parties.
“Assignee Group” means two or more Eligible Assignees that are Affiliates or one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit K-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP (subject in all respects to Section 1.04(b) hereof), and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP (subject in all respects to Section 1.04(b) hereof) if such lease or other agreement or instrument were accounted for as a Capital Lease.
“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31, 2023, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.
“Availability Period” means:
6
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A. and its successors.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus ½ of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, (c) the Floating Term SOFR plus 1.75% and (d) 1.75%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of clauses (a), (b) and (d) above and shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
7
“Borrower” and “Borrowers” have the meanings specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 6.01.
“Borrowers’ Liabilities” has the meaning specified in Section 2.19(a).
“Borrowing” means a Floor Plan Borrowing, a Revolving Credit Borrowing or an L/C Borrowing.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located.
“Capital Expenditures” means, for any Person for any period of determination thereof, (a) all net expenses incurred during such period by such Person in connection with capital replacements, additions, renewals or improvements to any of the capital assets of such Person which are required to be capitalized on the books and accounts of such Person in accordance with GAAP, and (b) the amount of Capital Lease Obligations paid by such Person during such period; provided, however, Capital Expenditures shall not include (i) expenditures for fixed assets acquired in connection with an Acquisition permitted by Section 7.04(c), or (ii) the acquisition of any Permitted Company Vehicles if such Permitted Company Vehicles are financed with Floor Plan Loans or are included in the assets constituting the Revolving Credit Borrowing Base; and provided further that for the purposes of calculating the Fixed Charge Coverage Ratio, to the extent that Capital Expenditures made during a Measurement Period with respect to improvements to real estate owned by the Company or any Subsidiary that are included as a Fixed Charge during such period (the “Applicable RE Improvement Fixed Charges”) are subsequently reimbursed during such Measurement Period by a third party purchaser of such real estate (the “Applicable Reimbursed Fixed Charges”), such Applicable RE Improvement Fixed Charges shall be reduced by the amount of such Applicable Reimbursed Fixed Charges during such Measurement Period (provided that such reduction shall not result in Applicable RE Improvement Fixed Charges that are less than $0).
“Capital Lease” means, with respect to any Person, any lease by that Person which requires such Person to concurrently recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP (subject in all respects to Section 1.04(b) hereof).
“Capital Lease Obligation” means, with respect to any Person and a Capital Lease, the amount of the obligations of such Person as the lessee under such Capital Lease that would, in accordance with GAAP (subject in all respects to Section 1.04(b) hereof), appear as a liability on a balance sheet of such Person.
“Cash Collateralize” means to deposit in a Controlled Account or to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer and the Lenders, as collateral for L/C Obligations or obligations of the Lenders to make L/C Advances, cash or deposit account balances, or, if the Administrative Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
8
“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, purchasing card, electronic funds transfer and other cash management arrangements. For the purposes of clarity, the mere opening of a Deposit Account, without more, shall not be deemed a Cash Management Agreement.
“Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement, in each case in its capacity as a party to such Cash Management Agreement.
“Change in Control” means an event or series of events by which:
9
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“CME” means CME Group Benchmark Administration Limited.
“Code” means the Internal Revenue Code of 1986.
“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
“Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, each of the mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements (including any supplemental agreements or joinder agreements with respect thereto) delivered to the Administrative Agent pursuant to Section 6.15, and each of the other agreements,
10
instruments or documents that creates, perfects, or purports to create or perfect a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
“Commitment” means at any time with respect to any Lender, such Lender’s Letter of Credit Commitment, Floor Plan Commitment and/or Revolving Credit Commitment, as the context may require. “Commitments” collectively means each Commitment of all the Lenders.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communication” means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.
“Company” has the meaning specified in the introductory paragraph.
“Compliance and Borrowing Base Certificate” means a certificate substantially in the form of Exhibit B or such other form as may be agreed to by the Administrative Agent and the Company.
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR, Floating Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR” and “Floating Term SOFR”, timing and frequency (including interest periods) of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate, and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Current Ratio” means, at any time, the ratio of Current Assets to Current Liabilities.
“Consolidated EBITDAR” means for any period of determination, for the Company and its Subsidiaries on a consolidated basis, Net Income for such period, plus, to the extent deducted in the determination of Net Income and without duplication with items included in the adjustments under GAAP to Net Income in the determination of net income, (a) income tax liability for such period, (b) Interest Expense other than Floor Plan Interest Expense, (c) noncash income or charges, including depreciation and amortization expenses, and (d) net rents (excluding non-cash capitalized or deferred rents as required under FASB ASC 840-10, 840-20 and 420-10).
11
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Account” means any account listed on Schedule 5.21 that is maintained with Bank of America or identified by the Administrative Agent as an account that is or shall be subject to Account Control Documentation pursuant to this Agreement or any other Loan Document.
“Controlled Deposit Accounts” has the meaning specified in Section 6.11.
“Controlled Managing Member” means Camping World Holdings, Inc., a Delaware corporation, so long as Camping World Holdings, Inc. satisfies each of the following conditions: (a) it is the sole managing member or sole manager of Parent and (b) it controls all of the operational affairs and decision-making of Parent.
“Covered Entity” has the meaning specified in Section 10.25(b).
“Credit Extension” means each of the following: (a) a Floor Plan Borrowing, (b) an L/C Credit Extension, and (c) a Revolving Credit Borrowing.
“Credit Party” has the meaning specified in Section 10.18.
“Crestview” means Crestview Partners II, L.P. and its Affiliates.
“Current Assets” means the sum of cash, liquid assets, contracts in transit, accounts receivable (excluding amounts due from officers, equity holders, affiliates and employees and service work-in-process recorded under ASC 606) and inventory (including, without limitation, rental units and other Eligible Floor Plan Vehicles or Units) (valued at the lower of cost or market) of the Company and its Subsidiaries, all determined on a consolidated basis in accordance with GAAP.
“Current Liabilities” means, at any time, the consolidated total liabilities of the Company and its Subsidiaries that would be shown as current liabilities on a balance sheet of the Company and its Subsidiaries (including Floor Plan Loans) prepared on a consolidated basis in accordance with GAAP at such time, excluding any current liabilities (i) that constitute L/C Borrowings or (ii) expressly subordinated in right of payment to the Obligations owing to the Secured Parties; provided that, for purposes of calculating the Consolidated Current Ratio as of any time within one year prior to the Maturity Date, not more than $14,000,000 of outstanding Revolving Credit Loans hereunder shall be counted as Current Liabilities.
“CWGS Group Credit Agreement” means that certain Credit Agreement dated as of June 3, 2021 (as amended as of December 20, 2021, June 9, 2023 and as of December 2, 2024, and as further amended, modified or supplemented from time to time), among CWGS Group, LLC, a Delaware limited liability company, CWGS Enterprises, LLC, a Delaware limited liability company, the lenders from time to time party thereto and Goldman Sachs Bank USA, as administrative agent.
“Daily Loan Balance” has the meaning specified in Section 2.17(a)(i).
12
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Dealership Acquisition” means any Acquisition that involves the acquisition of any dealership or all or substantially all of the assets of a dealership, including the goodwill associated therewith.
“Debt” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
For all purposes hereof, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Debt is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the swap termination value thereof as of such date.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
13
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means (a) when used with respect to Floor Plan Loans and other Obligations (other than L/C Borrowings, Letter of Credit Fees and Revolving Credit Loans), an interest rate equal to (i) the Base Rate plus (ii) the Floor Plan Applicable Rate applicable to Base Rate Loans determined based upon Pricing Level V as set forth in the table in the definition of “Floor Plan Applicable Rate” (including any additional amounts added thereto pursuant to clause (i) of the definition of “Floor Plan Applicable Rate”) plus (iii) 3% per annum; (b) when used with respect to L/C Borrowings, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate plus (iii) 3% per annum; (c) when used with respect to Letter of Credit Fees, an interest rate equal to (i) the Applicable Rate, plus (ii) 3% per annum; and (d) when used with respect to Revolving Credit Loans, an interest rate equal to (i) the Base Rate plus (ii) the Revolving Credit Applicable Rate applicable to Base Rate Loans plus (iii) 3% per annum.
“Default Rate Notice” has the meaning specified in Section 2.12(c).
“Defaulting Lender” means, subject to Section 2.21(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and any Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, or any other Lender any other amount required to be paid by it hereunder (including in respect of its obligation to make L/C Advances or otherwise participate in Letters of Credit) within two Business Days of the date when due, (b) has notified any Borrower, the Administrative Agent or the L/C Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or any Borrower, to confirm in writing to the Administrative Agent and any Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and any Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) as of the date established therefor by the Administrative Agent in a written notice of such
14
determination, which shall be delivered by the Administrative Agent to any Borrower, the L/C Issuer, and each other Lender promptly following such determination.
“Deposit Account” means an account listed on Schedule 5.21 that is used by a Loan Party as a deposit account in the ordinary course of the business of such Loan Party.
“Designated Jurisdiction” means any region, country or territory to the extent that such region, country or territory itself is the subject of any Sanction.
“Disputed Existing Loan” has the meaning specified in Section 4.01(a)(xi).
“Dividing Person” has the meaning assigned to it in the definition of “Division.”
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of (a) the District of Columbia or (b) any state of the United States.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.
“Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
“Eligible Accounts” means the consolidated net value of all of the Accounts (including contracts in transit) of any of the Loan Parties on which the Administrative Agent holds a perfected, first priority Lien, each of which Accounts meet the following criteria on the date of determination:
15
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).
“Eligible Floor Plan Unit” means any Eligible New Floor Plan Unit, Eligible Used Floor Plan Unit or Eligible Rental Floor Plan Unit.
“Eligible Floor Plan Vehicle or Unit” means any Eligible New Floor Plan Unit, Specified New Floor Plan Unit, Eligible Used Floor Plan Unit, Eligible Rental Floor Plan Unit, Eligible Used Vehicle or Permitted Company Vehicle.
“Eligible Forest River New/Rental Vehicle or Unit” means an Eligible New Floor Plan Unit, Specified New Floor Plan Unit, Eligible Rental Floor Plan Unit or Permitted Company Vehicle that, in each case, is manufactured or supplied by Forest River.
16
“Eligible New Floor Plan Unit” means any Floor Plan Unit of any Borrower that is new and unused and is subject to an Eligible Repurchase Agreement, including, without limitation, any such Floor Plan Unit purchased by any Borrower from another dealer of Floor Plan Units, and in any case, that the Administrative Agent, in its sole discretion, deems to be an Eligible New Floor Plan Unit; provided that in no event shall any Floor Plan Unit be deemed an Eligible New Floor Plan Unit unless all representations and warranties set forth in the Collateral Documents with respect to such Floor Plan Unit are true and correct and such Floor Plan Unit:
“Eligible New/Rental Floor Plan Loans” has the meaning specified in Section 2.03(a).
“Eligible Parts Inventory” means the net book value of all parts and accessories inventory of any of the Loan Parties on which the Administrative Agent holds a perfected, first priority Lien, free and clear of any other Liens, which inventory meets the eligibility criteria requirements of the Administrative Agent.
“Eligible Rental Floor Plan Unit” means, from the time at which any Borrower designates such Floor Plan Unit as an Eligible Rental Floor Plan Unit, any Floor Plan Unit of any Borrower that is held by any Borrower for short-term rentals to consumers or as a demonstration unit and which the Administrative Agent, in its sole discretion, deems to be an Eligible Rental Floor Plan Unit; provided that in no event shall any Floor Plan Unit be deemed an Eligible Rental Floor Plan Unit unless all representations and warranties set forth in the Collateral Documents with respect to such Floor Plan Unit are true and correct and such Floor Plan Unit:
17
Notwithstanding the foregoing, an Ice Fish House shall not be an Eligible Rental Floor Plan Unit.
“Eligible Repurchase Agreement” means an agreement between the Administrative Agent and a manufacturer or supplier of Floor Plan Units to any Borrower (or a manufacturer or supplier of Floor Plan Units to another dealer that subsequently sold such Floor Plan Units to any Borrower) providing for such manufacturer’s or supplier’s agreement to repurchase from such Borrower the Floor Plan Units sold to such Borrower by such manufacturer, supplier or other dealer (whether such Floor Plan Units are held for sale by such Borrower or held by such Borrower as rental units) on such terms and conditions as are acceptable to the Administrative Agent in its sole discretion.
“Eligible Used Floor Plan Loan” is defined in Section 2.03(b).
“Eligible Used Floor Plan Unit” means any Floor Plan Unit of any Borrower that is used (i.e., a Floor Plan Unit that has been previously sold at retail, has been registered, documented or titled in any state or jurisdiction, or has been purchased or acquired by such Borrower from a source other than the manufacturer, including trade-in inventory), or any Floor Plan Unit that is new and unused but otherwise does not meet the conditions for being an Eligible New Floor Plan Unit, and, in any case, that the Administrative Agent, in its sole discretion, deems to be an Eligible Used Floor Plan Unit; provided that in no event shall any Floor Plan Unit be deemed an Eligible Used Floor Plan Unit unless all representations and warranties set forth in the Collateral Documents with respect to such Floor Plan Unit are true and correct and such Floor Plan Unit:
18
“Eligible Used Vehicle” means any Floor Plan Used Vehicle of any Borrower that is held for sale in the ordinary course of such Borrower’s business; provided that in no event shall any Floor Plan Used Vehicle be deemed an Eligible Used Vehicle unless all representations and warranties set forth in the Collateral Documents with respect to such Floor Plan Used Vehicle are true and correct and such Floor Plan Used Vehicle:
“Eligible Warranty Claim Receivables” means the book value of claims arising from warranty service work to the extent such claims have been outstanding for 120 days or less, which claims are subject to a perfected, first priority Lien in favor of the Administrative Agent free and clear of any other Liens.
“Employee Benefit Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
19
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrowers, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Holder” has the meaning specified in the definition of Permitted Tax Distribution.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Obligated Party nor any ERISA Affiliate from a Pension Plan subject to Section 4063 during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Obligated Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning specified in Section 8.01.
20
“Excluded Swap Obligation” means, with respect to any Obligated Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Obligated Party of, the joint and several liability of such Obligated Party for, or the grant by such Obligated Party of a security interest to secure, such Swap Obligation (or any Guaranty thereof or joint and several liability therefor) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Obligated Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.22 and any other “keepwell, support or other agreement” for the benefit of such Obligated Party and any and all guarantees of such Obligated Party’s Swap Obligations by other Obligated Parties) at the time the Guaranty of such Obligated Party, the joint and several liability of such Obligated Party, or a grant by such Obligated Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty, liability or security interest is or becomes excluded in accordance with the first sentence of this definition. The parties hereto agree that if any Obligated Party has granted a Lien on any Collateral of such Obligated Party pursuant to any Collateral Document, the obligations secured by such Lien shall exclude any Excluded Swap Obligation with respect to such Obligated Party, and such Collateral Document is hereby amended to effect such exclusion.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Existing Credit Agreement” has the meaning specified in the recitals hereto.
“Existing Credit Documents” has the meaning specified in Section 1.01(b).
“Existing Floor Plan Loans” has the meaning specified in Section 1.01(b)(i).
“Existing L/C Advances” has the meaning specified in Section 1.01(b)(iv).
“Existing Letters of Credit” has the meaning specified in Section 1.01(b)(iii). Each of the Existing Letters of Credit is referenced on Schedule 1.02-A attached hereto, provided that the failure to list any Existing Letter of Credit on Schedule 1.02-A shall not prevent such letter of credit from being an Existing Letter of Credit hereunder.
21
“Existing Revolving Credit Loans” has the meaning specified in Section 1.01(b)(ii).
“Facility” means the Letter of Credit Facility, the Floor Plan Facility or the Revolving Credit Facility, as the context may require.
“Facility Subordination Agreement” means any written agreement between the Administrative Agent, on behalf of the Secured Parties, and any third party creditor (an “Other Creditor”) of any Obligated Party, subordinating (a) the Liens on all or substantially all of the Collateral granted to the Administrative Agent by the Collateral Documents to Liens on such Collateral held by such Other Creditor or (b) all or substantially all of the Obligations owed to Secured Parties under the Loan Documents to the indebtedness owed to such Other Creditor by the Obligated Parties. For the avoidance of doubt, the consent by the Required Lenders to Liens on any Collateral shall not, without more, constitute a Facility Subordination Agreement, even if such Liens have priority over any Lien of the Administrative Agent under applicable Law.
“Fair Market Value” means, at any time and with respect to any Property, the sale value of such Property that would be realized in an arm’s-length sale at such time between an informed and willing buyer and an informed and willing seller (neither being under a compulsion to buy or sell).
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code as of the Effective Date (or any amended or successor version described above) and any intergovernmental agreement (and related fiscal or regulatory legislation, or related official rules or practices) implementing the foregoing.
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letter” means the letter agreement dated January 9, 2025 between the Company, the Administrative Agent and the Arranger.
“FEMA” means the United States Federal Emergency Management Agency and any successor agency.
“Fitch” means Fitch Ratings, Inc. and any successor thereto.
“Fixed Charge Coverage Ratio” means the ratio of (a) Consolidated EBITDAR less non-financed Capital Expenditures to (b) Fixed Charges, calculated as of the end of each month based upon the twelve consecutive months ended on such date of determination.
22
“Fixed Charges” means, for any period of determination, for the Company and its Subsidiaries on a consolidated basis, without duplication, the sum of (i) cash Interest Expense (other than cash interest paid on Floor Plan Debt), (ii) net rents (excluding non-cash capitalized or deferred rents as required under FASB ASC 840-10, 840-20 and 420-10), (iii) income tax liability for such period (calculated as if the Company were a “C” corporation for income tax purposes), and (iv) scheduled principal payments of Debt (excluding scheduled principal payments of Subordinated Debt not paid in cash).
“FLAIR Account” has the meaning specified in Section 2.04(a).
“FLAIR Reduction” has the meaning specified in Section 2.04(c).
“Floating Term SOFR” means:
provided that if the Floating Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than zero, the Floating Term SOFR shall be deemed zero for purposes of this Agreement.
“Floating Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Floating Term SOFR.
“Floor Plan Applicable Rate” means, from time to time, the following percentages per annum, based upon the Consolidated Current Ratio as set forth below:
Floor Plan Applicable Rate | |||
|---|---|---|---|
Pricing Level | Consolidated Current Ratio | Floating Term SOFR Loans | Base Rate Loans |
I | Greater than 1.300 to 1.000 | 1.90% | 0.40% |
II | Greater than 1.250 to 1.000 but less than or equal to 1.300 to 1.000 | 2.05% | 0.55% |
23
Floor Plan Applicable Rate | |||
|---|---|---|---|
Pricing Level | Consolidated Current Ratio | Floating Term SOFR Loans | Base Rate Loans |
III | Greater than 1.220 to 1.000 but less than or equal to 1.250 to 1.000 | 2.15% | 0.65% |
IV | Greater than 1.200 to 1.000 but less than or equal to 1.220 to 1.000 | 2.35% | 0.85% |
V | Less than or equal to 1.200 to 1.000 | 2.50% | 1.00% |
provided, in each case, that (i) commencing on the Effective Date, the Applicable Rate for Floor Plan Loans will be 1.90% in the case of Floor Plan Loans that are Floating Term SOFR Loans, and 0.40% in the case of Floor Plan Loans that are Base Rate Loans and (ii) commencing in March 2025, the Applicable Rate for any month shall be determined by reference to the applicable grid above and the Consolidated Current Ratio as set forth in the most recent monthly Compliance and Borrowing Base Certificate (each, a “Monthly Compliance and Borrowing Base Certificate”) received by the Administrative Agent pursuant to Section 6.02 delivered with the financial statements delivered pursuant to Section 6.01(a) for the monthly period then ended. Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Current Ratio shall become effective as of the first day (the “Rate Change Effective Date”) of the calendar month immediately following the date a Monthly Compliance and Borrowing Base Certificate is delivered pursuant to Section 6.02 (but, in each case, the resulting Applicable Rate on such Rate Change Effective Date shall be based on the grid in effect on such Rate Change Effective Date, and the Applicable Rate on any subsequent date shall be based on the grid in effect on such date); provided, however, that if a Compliance and Borrowing Base Certificate is not delivered when due in accordance with such Section, then Pricing Level V shall apply as of the first day of the calendar month after the date on which such Compliance and Borrowing Base Certificate was required to have been delivered until the first day of the calendar month after the date a Compliance and Borrowing Base Certificate is timely delivered (but nothing contained in this definition shall be deemed to waive any Default arising from the failure to deliver any Compliance and Borrowing Base Certificate when due); provided further that (subject to the preceding proviso) the Floor Plan Applicable Rate for the entire months of January and February of each calendar year will be determined based on the Consolidated Current Ratio as set forth in the Compliance and Borrowing Base Certificate as of the last day of November in the previous calendar year. Notwithstanding anything to the contrary contained in this definition, the determination of the Floor Plan Applicable Rate for any period shall be subject to the provisions of Section 2.14(b).
“Floor Plan Borrowing” means a borrowing of Floor Plan Loans pursuant to Section 2.02.
“Floor Plan Borrowing Notice” has the meaning specified in Section 2.03(b).
“Floor Plan Commitment” means, for each Floor Plan Lender, (i) its obligation to make Floor Plan Loans to the Borrowers up to the amount set forth opposite such Lender’s name on Schedule 1.01-B, under the caption “Floor Plan Commitment”, or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement, and (ii) its obligation to purchase and fund participations in Floor Plan Loans pursuant to Section 2.17.
24
“Floor Plan Debt” means all secured Debt of the Company and its Subsidiaries incurred to finance Eligible Floor Plan Vehicles or Units under this Agreement.
“Floor Plan Facility” means, at any time, the aggregate amount of the Floor Plan Commitments of the Floor Plan Lenders at such time.
“Floor Plan Facility Exposure” means, as to any Floor Plan Lender at any time, the aggregate principal amount at such time of its outstanding Floor Plan Loans at such time.
“Floor Plan Increase” has the meaning specified in Section 2.22(a).
“Floor Plan Interest Expense” means that component of the Company’s aggregate Interest Expense, determined on a consolidated basis, attributable to Floor Plan Debt.
“Floor Plan Lender” means at any time, any Lender having a Floor Plan Commitment.
“Floor Plan Loan” has the meaning specified in Section 2.02(a).
“Floor Plan Note” means a promissory note made by each Borrower in favor of a Floor Plan Lender evidencing Floor Plan Loans made by such Floor Plan Lender, substantially in the form of Exhibit A-1.
“Floor Plan Outstandings” has the meaning specified in Section 2.04(c).
“Floor Plan Units” means inventory of the Borrowers consisting of recreational vehicles and/or towables (including Ice Fish Houses) sold or leased by the Borrowers in the ordinary course of their businesses. Floor Plan Units do not include supplies or spare parts inventory; provided, that Floor Plan Units shall not include Ice Fish Houses leased by the Borrowers.
“Floor Plan Used Vehicle” means inventory of the Borrowers consisting of Used Vehicles sold by the Borrowers in the ordinary course of their businesses. Floor Plan Used Vehicles do not include supplies or spare parts inventory.
“Floor Plan Vehicle or Unit” means any Floor Plan Unit, Floor Plan Used Vehicle or Permitted Company Vehicle.
“Foreign Lender” means (a) if any Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if any Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Forest River” means Forest River, Inc. or any of its Subsidiaries.
“FR Holdings” means FreedomRoads Holding Company, LLC, a Minnesota limited liability company.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
25
“FRI” means FreedomRoads Intermediate Holdco, LLC, a Minnesota limited liability company.
“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Goodwill Amount” has the meaning specified in Section 7.04(c)(i).
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt or other obligation of the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means, collectively, (a) the Holding Company Guarantors, (b) the Subsidiary Guarantors, and (c) with respect to (i) Obligations owing by any Loan Party or any Subsidiary of a
26
Loan Party under any Swap Contract or any Cash Management Agreement and (ii) the payment and performance by each Specified Loan Party of its obligations under its Guarantee with respect to all Swap Obligations, each Borrower.
“Guaranty” means, collectively, the Holding Company Guaranty and the Subsidiary Guaranty.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedge Bank” means any Person that, (a) at the time it enters into a Secured Hedge Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract required or permitted under Article VI or VII, in each case in its capacity as a party to such Secured Hedge Agreement.
“Holding Company Guarantor” means, collectively, FRI and each other Intermediate Holding Company existing on the Effective Date and each future direct and indirect Intermediate Holding Company that shall be required to execute and deliver a Holding Company Guaranty Joinder Agreement (as defined in the Holding Company Guaranty) pursuant to Section 6.15.
“Holding Company Guaranty” means that certain Seventh Amended and Restated Guaranty dated as of the date hereof made by FRI in favor of the Secured Parties, substantially in the form of Exhibit C, together with each Holding Company Guaranty Joinder Agreement (as defined in the Holding Company Guaranty) pursuant to Section 6.15.
“Hurricane Program” means the sales and leasing program whereby Floor Plan Units will be (i) sold by the Company to FEMA or other state or federal agencies working under disaster relief programs, or (ii) leased by the Borrowers to non-governmental entities as temporary housing for persons affected by hurricanes in the United States from time to time, in each case in accordance with Sections 6.18 and 6.19 hereof and the other terms of this Agreement relating to such sales or leases.
“Hurricane Program Lessees” means the entities to which the Borrowers lease Floor Plan Units under the Hurricane Program in accordance with Section 6.19 and the other terms of this Agreement relating to the Hurricane Program for use of those units as temporary housing for persons affected by hurricanes in the United States from time to time.
“Ice Fish House” means a towable ice house manufactured by, and purchased from, American Surplus & Manufacturing, Inc. or another manufacturer acceptable to the Administrative Agent.
“Increase Amendment” has the meaning specified in Section 2.22(g).
“Increase Effective Date” has the meaning specified in Section 2.22(d).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Obligated Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning specified in Section 10.04(b).
27
“Information” has the meaning specified in Section 10.07.
“Interest Expense” means, for any Person, determined on a consolidated basis, the sum of all interest on Debt paid or payable (including the portion of rents payable under Capital Leases allocable to interest, but excluding interest allowances from manufacturers/vendors) plus all original issue discount and other interest expense associated with Debt amortized or required to be amortized in accordance with GAAP.
“Interest Payment Date” means the fifteenth (15th) day of each month, or if such day falls on a day other than a Business Day, the next Business Day thereafter, and the Termination Date.
“Intermediate Holding Company” means each direct and indirect Subsidiary of FRI that is not a Subsidiary of the Company.
“Investment” means (a) any investment, made in cash or by delivery of property, by any Loan Party (i) in any Person, whether by acquisition of Equity Interests, Debt or other obligation or Security, or by loan, Guarantee, advance, capital contribution or otherwise (including pursuant to a merger with any Person that was not a Borrower prior to such merger), or (ii) in any Property, or (b) any Acquisition.
“IRS” means the United States Internal Revenue Service.
“ISP” means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Company (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Advance” means, with respect to each L/C Lender, such Lender’s funding of its participation in any (a) Unreimbursed Amount or (b) L/C Borrowing in accordance with its Applicable Percentage, including any Existing L/C Advance.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed by the Borrowers.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit hereunder (including the Existing Letters of Credit), or any successor issuer of Letters of Credit hereunder. The L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the L/C Issuer, in which case the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate; provided that, in any such case, in order to qualify as a “L/C
28
Issuer” such Affiliate must have a credit rating of (i) “BBB-” or higher from S&P, (ii) “Baa3” or higher from Moody’s and (iii) “BBB-” or higher from Fitch.
“L/C Lender” means, at any time, any Lender that has a Letter of Credit Commitment at such time.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit, plus the aggregate amount of all L/C Advances and Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Article 29(a) of the UCP or Rule 3.13 or Rule 3.14 of the ISP or similar terms of the Letter of Credit itself, or if compliant documents have been presented but not yet honored, such Letter of Credit shall be deemed to be “outstanding” and “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrowers and each L/C Lender shall remain in full force and effect until the L/C Issuer and the L/C Lenders shall have no further obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit.
“Lender” has the meaning specified in the introductory paragraph hereto and shall include the L/C Lenders, the Floor Plan Lenders and the Revolving Credit Lenders, as the context requires.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall include the Existing Letters of Credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Commitment” means, as to each L/C Lender, its obligation to purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01-B, under the caption “Letter of Credit Commitment”, or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Letter of Credit Expiration Date” means the day that is five (5) days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Facility” means, at any time, the aggregate amount of the L/C Lenders’ Letter of Credit Commitments at such time, which shall not exceed $45,000,000 at any time.
29
“Letter of Credit Facility Exposure” means, as to any L/C Lender at any time, the aggregate principal amount at such time of its outstanding L/C Advances and such L/C Lender’s obligation to participate in any L/C Borrowing at such time.
“Letter of Credit Fee” has the meaning specified in Section 2.01(h).
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Floor Plan Loan or Revolving Credit Loan.
“Loan Documents” means, collectively, (a) this Agreement, (b) the Floor Plan Notes, (c) the Revolving Credit Notes, (d) each Guaranty, (e) the Collateral Documents, (f) the Fee Letter, (g) each Issuer Document and (h) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.20 of this Agreement.
“Loan Parties” means, collectively, the Borrowers and each Subsidiary Guarantor.
“Manufacturer Category” means, as of any date of determination, the status of a manufacturer or supplier of Floor Plan Units as a Tier One Manufacturer or a Tier Two Manufacturer.
“Material” means, unless otherwise specifically stated, material in relation to the business, operations, affairs, financial condition, assets, properties or prospects of any Loan Party.
“Material Adverse Effect” means, (a) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of (1) the Company and its Subsidiaries taken as a whole or (2) FRI and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Secured Party under the Loan Documents, or of the ability of any Obligated Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Obligated Party or other Guarantor (or any party to any intercreditor or subordination undertaking) of any Loan Document, or of any intercreditor or subordination undertaking relating to the Facilities to which it is a party.
“Material Contract” means, with respect to any Person, each contract to which such Person is a party involving aggregate consideration payable to or by such Person of $5,000,000 or more or otherwise material to the business, condition (financial or otherwise), operations, performance, properties or prospects of such Person.
“Maturity Date” means the fifth anniversary of the Effective Date; provided, however, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day; provided that, if on March 5, 2028 (the “Springing Maturity Date”), any of the “Term Loans” (as defined in and under the CWGS Group Credit Agreement) have not been repaid, refinanced, defeased, or the maturity date therefor has not been extended, in each case to a date at least 180 days after the fifth anniversary of the
30
Effective Date, then the Maturity Date shall be the Springing Maturity Date (or, if such day is not a Business Day, the next succeeding Business Day).
“Maximum Rate” has the meaning specified in Section 10.09.
“Measurement Period” means, at any date of determination, the most recently completed twelve month period of the Company.
“Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.20(a)(i), (a)(ii) or (a)(iii), an amount equal to 100% of the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including any Obligated Party or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Income” means for any Person for any period for which the amount thereof is to be determined, the net income (or net losses) of such Person and its Subsidiaries on a consolidated basis as determined in accordance with GAAP after deducting, to the extent included in computing said net income and without duplication, (i) the income (or deficit) of any Person (other than a Subsidiary of such Person), in which such Person or any of its Subsidiaries has any ownership interest, except to the extent that any such income has been actually received by such Person or such Subsidiary in the form of cash dividends or similar cash distribution, (ii) any income (or deficit) of any other Person accrued prior to the date it becomes a Subsidiary of such Person or merges into or consolidates with such entity, (iii) the gain or loss (net of any tax effect) resulting from the sale of any capital assets, (iv) any gains or losses or other income which are non-recurring, extraordinary or attributable to discontinued operations, (v) gains or losses resulting from the write-up or write-down of any assets, and (vi) any portion of the net income of any Subsidiaries which is not available for distribution to the Company.
“Net Proceeds Amount” means, with respect to any Transfer of any Property by any Person, an amount equal to the difference of (a) the aggregate amount of the consideration (valued at the Fair Market Value of such consideration at the time of the consummation of such Transfer) received by such Person in respect of such Transfer, minus (b) all ordinary and reasonable out-of-pocket costs and expenses actually incurred by such Person in connection with such Transfer.
“New Unit Invoiced Amount” means, with respect to any Eligible New Floor Plan Unit, any Specified New Floor Plan Unit, any Eligible Rental Floor Plan Unit or any Permitted Company
31
Vehicle, the amount of the manufacturer or vendor invoice (including freight charges) as specified to the Administrative Agent from time to time by the applicable manufacturer or vendor (or any other applicable Person) of such Eligible New Floor Plan Unit, Specified New Floor Plan Unit, Eligible Rental Floor Plan Unit or Permitted Company Vehicle.
“New Vehicle” means a Vehicle which has never been owned except by a manufacturer, distributor or dealer and has never been registered.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (ii) has been approved by the Required Lenders.
“Non-Dealership Acquisition” means any Acquisition other than a Dealership Acquisition.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Obligated Party” means each Loan Party and each Holding Company Guarantor.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Obligated Party or Guarantor arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement, or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Obligated Party or Guarantor (or any of their respective Affiliates) thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, provided that the Obligations of any Obligated Party or Guarantor shall exclude any Excluded Swap Obligations with respect to such Obligated Party or Guarantor.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Organization Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating or limited liability agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
32
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.05).
“Outstanding Amount” means (a) with respect to Floor Plan Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Floor Plan Loans, as the case may be, occurring on such date; (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts; and (c) with respect to Revolving Credit Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans, as the case may be, occurring on such date.
“Parent” means a corporation, limited liability company, partnership or other entity that owns, directly or indirectly, 100% of the Equity Interests of FRI.
“Participant” has the meaning specified in Section 10.06(d).
“Participant Register” has the meaning specified in Section 10.06(d).
“Patriot Act” has the meaning specified in Section 10.19.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 462 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means at any time any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code and is maintained or is contributed to by any Obligated Party and any ERISA Affiliate.
“Perfection Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other appropriate office in the state of organization of each Loan Party, (b) the filing of appropriate assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable, (c) the proper recording or filing, as applicable, of mortgages and fixture filings with respect to any assets or properties constituting Collateral and (d) the delivery of any stock certificate or promissory note together with instruments of transfer executed in blank, in each case, to the extent required by the applicable Loan Documents.
33
“Permitted Company Vehicles” means vehicles purchased by a Borrower for use in its business in the ordinary course (including use by officers and employees), which vehicles are of the then current model year or the previous model year when so purchased, and in any case, that the Administrative Agent, in its sole discretion, deems to be a Permitted Company Vehicle; provided that in no event shall any such vehicle be deemed a Permitted Company Vehicle unless all representations and warranties set forth in the Collateral Documents with respect to such vehicle are true and correct and such vehicle:
“Permitted Holders” means, with respect to any Equity Interests of any Person (the “Designated Equity Interests”): (a) Marcus Lemonis, (b) the widow, children and grandchildren of Stephen Adams (such Persons, “Adams Persons”), (d) trusts of which one or more Adams Persons are the sole beneficiaries and for which one or more of such individuals are the trustee(s), and (e) any other entity provided (in the case of this clause (e)) that any one or more Adams Persons and/or Marcus Lemonis has the power to exercise all voting rights with respect to any Designated Equity Interests held by such entity.
“Permitted Investments” means, collectively, all of the following:
34
“Permitted Lien” means Liens expressly permitted by Section 7.02.
“Permitted Tax Distribution” means, for so long as any Loan Party is an “S corporation” or a substantially similar pass-through entity for federal income tax purposes, for any period, any Restricted Payment by the Company directly or indirectly, to FR Holdings for distribution to the Persons who are ultimately responsible to pay federal income taxes with respect to the Company’s consolidated net income (collectively, the “Equity Holders”, and each an “Equity Holder”) in such amounts, with respect to any taxable year, as are reasonably estimated by the Company’s chief financial officer or chief accounting officer to be equal to the aggregate federal, state and local income taxes (including estimated taxes) payable by the Equity Holders for such taxable year, calculated by (a) applying the highest marginal individual income tax rates then in effect under the Code and under the laws of any state in which any Equity Holder is required to pay income taxes with respect to the Company’s consolidated net income, and (b) taking into account only the Equity Holders’ flow-thru items from the Company for such year, such flow-thru items to be reduced (without duplication) by the amount of any losses allocated to the Equity Holders for prior taxable years, whether or not used by any Equity Holder, and the deductibility or creditability of the resulting taxes against each other for differences in taxable years between an Equity Holder and the Company.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Obligated Party or any ERISA Affiliate or any such Plan to which any Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Platform” has the meaning specified in the last paragraph of Section 6.01.
“Pledge Agreement” means that certain Seventh Amended and Restated Securities Pledge Agreement dated as of the date hereof, made by FRI, the Company and certain Loan Parties party thereto in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit F attached hereto, as supplemented from time to time by the execution and delivery of a Pledge Joinder Agreement or Pledge Agreement Supplement (each as defined in the Pledge Agreement) and as otherwise supplemented, amended, restated or modified from time to time.
35
“Prohibited Transaction” means a transaction with respect to an Employee Benefit Plan that is prohibited under section 4975 of the Code or section 406 of ERISA and not exempt under section 4975 of the Code or section 408 of ERISA.
“Property” and “Properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in the last paragraph of Section 6.01.
“Qualified ECP Guarantor” shall mean, at any time, each Obligated Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Real Estate Support Documents” means such third party consents, landlord and mortgagee agreements, mortgagee title insurance policies (in amounts and with endorsements acceptable to the Administrative Agent), surveys, appraisals, environmental reports, flood hazard certifications, evidence of flood insurance (if required), other mortgage-related documents, and subordination and nondisturbance agreements, in each case as the Administrative Agent may request.
“Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Obligated Party hereunder.
“Reflooring Loan” is defined in Section 2.02(c).
“Register” has the meaning specified in Section 10.06(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.
“Removal Effective Date” has the meaning specified in Section 9.06(b).
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“Reported Discrepancies” has the meaning specified in Section 6.03(c).
“Request for Credit Extension” means (a) with respect to an L/C Credit Extension, a Letter of Credit Application, (b) with respect to a Floor Plan Loan, a Floor Plan Borrowing Notice and (c) with respect to a Revolving Credit Loan, a Revolving Credit Borrowing Notice.
“Required Floor Plan Lenders” means, at any time, Floor Plan Lenders having Total Floor Plan Facility Exposure representing more than 50% of the Total Floor Plan Facility Exposure of all Floor Plan Lenders. The Floor Plan Facility Exposure of any Defaulting Lender shall be disregarded in determining Required Floor Plan Lenders at any time.
36
“Required L/C Lenders” means, at any time, L/C Lenders having Total Letter of Credit Facility Exposure representing more than 50% of the Total Letter of Credit Facility Exposure of all L/C Lenders. The Total Letter of Credit Facility Exposure of any Defaulting Lender shall be disregarded in determining Required L/C Lenders at any time; provided that, the amount of any L/C Borrowing that such Defaulting Lender has failed to fund that has not been reallocated to and funded by another L/C Lender shall be deemed to be held by the Lender that is the L/C Issuer in making such determination.
“Required Lenders” means, at any time, Lenders having Total Credit Exposure representing more than 50% of the Total Credit Exposure of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any L/C Borrowing that such Defaulting Lender has failed to fund that has not been reallocated to and funded by another L/C Lender shall be deemed to be held by the Lender that is the L/C Issuer in making such determination.
“Required Revolving Credit Lenders” means at any time, Revolving Credit Lenders having Total Revolving Credit Facility Exposure representing more than 50% of the Total Revolving Credit Facility Exposure of all Revolving Credit Lenders. The Revolving Credit Facility Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Credit Lenders at any time.
“Rescindable Amount” has the meaning as defined in Section 2.16(b)(ii).
“Resignation Effective Date” has the meaning specified in Section 9.06(a).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, chief administrative officer, chief operating officer, chief accounting officer, treasurer, assistant treasurer, secretary or assistant secretary of a Loan Party or other Obligated Party and any other officer or employee of the applicable Loan Party or other Obligated Party so designated by any of the foregoing officers in a notice to the Administrative Agent and (ii) solely for purposes of notices given pursuant to Section 2.06, 2.08 or 2.14(a) with respect to any Revolving Credit Loan any other officer of the applicable Loan Party so designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party or other Obligated Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party or other Obligated Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party or other Obligated Party.
“Restricted Payment” means any dividend or other distribution or any payment (whether in cash, securities or other property) with respect to:
37
“Revolving Credit Advance Limit” means, on the Effective Date, as of the date of any Revolving Credit Borrowing Notice or any Revolving Credit Loan or as of the last day of the most recently ended month for which a Compliance and Borrowing Base Certificate has been delivered under Section 6.01(a)(i), an amount equal to the lesser of (i) the Total Revolving Credit Commitment and (ii) the Revolving Credit Borrowing Base.
“Revolving Credit Applicable Rate” means (a) in the case of Floating Term SOFR Loans, 2.25% per annum and (b) in the case of Base Rate Loans, 0.75% per annum.
“Revolving Credit Borrowing” means a borrowing of Revolving Credit Loans pursuant to Section 2.05.
“Revolving Credit Borrowing Base” means for the Company and its Subsidiaries, on a consolidated basis, the sum of the following items, without duplication, on which the Administrative Agent holds a valid and perfected first priority Lien:
38
(provided, that the aggregate of the New Unit Invoiced Amount and the Used Unit Book Value of all Permitted Company Vehicles included in the Revolving Credit Borrowing Base pursuant to clause (i) above shall not exceed $5,000,000);
plus
39
“Revolving Credit Borrowing Notice” has the meaning specified in Section 2.06(a).
“Revolving Credit Commitment” means, for each Revolving Credit Lender, its obligation to make Revolving Credit Loans to the Borrowers up to the amount set forth opposite such Lender’s name on Schedule 1.01-B, under the caption “Revolving Credit Commitment”, or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Commitments of the Revolving Credit Lenders at such time.
“Revolving Credit Facility Exposure” means, as to any Revolving Credit Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans at such time
“Revolving Credit Lender” means at any time, any Lender having a Revolving Credit Commitment.
“Revolving Credit Loan” has the meaning specified in Section 2.05(a).
“Revolving Credit Note” means a promissory note made by each Borrower in favor of a Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form of Exhibit A-2.
“Sanction(s)” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, His Majesty’s Treasury (“HMT”) or other relevant sanctions authority.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.
“Scheduled Unavailability Date” has the meaning specified in Section 3.03(b).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.
“Secured Hedge Agreement” means any Swap Contract permitted by this Agreement that is entered into by and between any Loan Party and any Hedge Bank.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
40
Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.
“Security” has the meaning set forth in section 2(a)(1) of the Securities Act of 1933.
“Security Agreement” means that certain Eighth Amended and Restated Security Agreement dated as of the date hereof, made by FRI, the Company and the Subsidiary Guarantors in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit E attached hereto, as supplemented from time to time by the execution and delivery of a Security Joinder Agreement (as defined in the Security Agreement) and as otherwise supplemented, amended, restated or modified from time to time.
“Settlement” means as of any time, the making of, or the receiving of payments, in immediately available funds, by the Floor Plan Lenders, to the extent necessary to cause each Floor Plan Lender’s actual funded share of the outstanding amount of Floor Plan Loans (after giving effect to any Loan to be made on such day) to be equal to such Floor Plan Lender’s Applicable Percentage under the Floor Plan Facility (after giving effect to any Floor Plan Loan to be made on such day), in any case where, prior to such event or action, such Floor Plan Lender’s actual funded share of the Floor Plan Loans is not so equal.
“Settlement Amount” has the meaning specified in Section 2.17(a).
“Settlement Date” has the meaning specified in Section 2.17(a).
“SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment” with respect to Daily Simple SOFR means 0.1145% (11.45 basis points); and with respect to Floating Term SOFR means 0.1145% (11.45 basis points) for an interest period of one-month’s duration.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Loan Party” means any Obligated Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.22).
41
“Specified New Floor Plan Loan” is defined in Section 2.03(b).
“Specified New Floor Plan Unit” means any Floor Plan Unit of any Borrower that satisfies the conditions to be an Eligible New Floor Plan Unit except that such unit is not subject to an Eligible Repurchase Agreement.
“Subordinated Debt” means, collectively, the Debt evidenced by each of the Subordinated Notes and any other Debt of any Loan Party subject to a valid and enforceable Subordination Agreement.
“Subordinated Guaranty” means any Guarantee of a Subordinated Note issued by a Borrower that is subject to a valid and enforceable Subordination Agreement.
“Subordinated Note” means any subordinated note made by any Borrower (i) existing as of the Effective Date and listed as such on Schedule 5.15 or (ii) issued after the Effective Date to a seller of assets to such Borrower in connection with an Acquisition permitted hereunder and substantially similar in form and substance (except as to payment dates and maturity date) to the Subordinated Notes issued prior to the Effective Date, in each case, subject to a valid and enforceable Subordination Agreement.
“Subordination Agreement” means, collectively, each of the Subordination Agreements between any Borrower and one or more holders of Debt of such Borrower, subordinated to the Obligations pursuant thereto, substantially in the form attached hereto as Exhibit I.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“Subsidiary Guarantors” means each direct and indirect Subsidiary of the Company existing on the Effective Date and each future direct and indirect Subsidiary of Company that shall be required to execute and deliver a Subsidiary Guaranty Joinder Agreement (as defined in the Subsidiary Guaranty) pursuant to Section 6.15.
“Subsidiary Guaranty” means that certain Seventh Amended and Restated Subsidiary Guaranty Agreement dated as of the date hereof, made by the Subsidiary Guarantors in favor of the Secured Parties, substantially in the form of Exhibit D, together with each Subsidiary Guaranty Joinder Agreement (as defined in the Subsidiary Guaranty) delivered pursuant to Section 6.15.
“Successor Rate” has the meaning specified in Section 3.03(b).
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions,
42
currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligations” means with respect to any Obligated Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Termination Date” means the earlier to occur of (i) the Maturity Date or (ii) the date on which the applicable Commitment is terminated in whole pursuant to Section 2.10 or Section 8.02.
“Third Party Bank” means any bank or other financial institution identified on Schedule 5.21, excluding the Administrative Agent.
“Tier One Manufacturer” means each manufacturer or supplier of Floor Plan Units identified as a “Tier One Manufacturer” from time to time on Schedule 1.02-B attached hereto. Each of the manufacturers or suppliers listed as a Tier One Manufacturer on Schedule 1.02-B on the Effective Date shall be deemed to be a Tier One Manufacturer as of the Effective Date, subject, however, to the right of the Administrative Agent to change the Manufacturer Category of any manufacturer or supplier of Floor Plan Units (or to add a manufacturer or supplier to a Manufacturer Category) from time to time after the Effective Date in accordance with Section 2.02(f) or Section 2.09(k).
“Tier Two Manufacturer” means each manufacturer or supplier of Floor Plan Units identified as a “Tier Two Manufacturer” from time to time on Schedule 1.02-B attached hereto. Each of the manufacturers or suppliers listed as a Tier Two Manufacturer on Schedule 1.02-B shall be deemed to be a Tier Two Manufacturer as of the Effective Date, subject, however, to the right of the Administrative Agent to change the Manufacturer Category of any manufacturer or supplier of Floor
43
Plan Units (or to add a manufacturer or supplier to a Manufacturer Category) from time to time after the Effective Date in accordance with Section 2.02(f) or Section 2.09(k).
“Total Commitment” means the sum of aggregate Commitments of all the Lenders under the Letter of Credit Facility, the Floor Plan Facility and the Revolving Credit Facility.
“Total Credit Exposure” means, as to any Lender at any time, the sum of (i) the Total Letter of Credit Facility Exposure of such Lender, (ii) the Total Floor Plan Facility Exposure of such Lender and (iii) the Total Revolving Credit Facility Exposure of such Lender.
“Total Floor Plan Facility Exposure” means, as to any Floor Plan Lender at any time, the sum of (i) the unused Floor Plan Commitment of such Lender and (ii) the Floor Plan Facility Exposure of such Lender at such time.
“Total Letter of Credit Facility Exposure” means, as to any L/C Lender at any time, the sum of (i) the unused Letter of Credit Commitment of such Lender and (ii) the Letter of Credit Facility Exposure of such Lender at such time.
“Total Outstandings” means aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Total Revolving Credit Commitment” means at any time, the aggregate amount of the Revolving Credit Commitments of all Lenders, as in effect at such time in accordance with this Agreement.
“Total Revolving Credit Facility Exposure” means as to any Revolving Credit Lender at any time, the sum of (i) the unused Revolving Credit Commitment of such Lender and (ii) the Revolving Credit Facility Exposure of such Lender at such time.
“Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans.
“Transfer” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and including any disposition of property pursuant to a Division. For purposes of determining the application of the Net Proceeds Amount in respect of any Transfer, the Company may designate any Transfer as one or more separate Transfers each yielding a separate Net Proceeds Amount.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Floating Term SOFR Loan.
“UCC” means the Uniform Commercial Code as in effect in the State of Illinois; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Illinois, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
44
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.01(c)(ii).
“Used Unit Book Value” means, with respect to any Eligible Used Floor Plan Unit, the low wholesale value of such Eligible Used Floor Plan Unit, as determined by reference to the most recently published National Automobile Dealers Association RV Industry Appraisal Guide or such comparable report or source of information reasonably designated by the Administrative Agent.
“Used Vehicle” means any Vehicle other than a New Vehicle.
“Used Vehicle Book Value” means, with respect to any Eligible Used Vehicle, the “Average Trade In Value with no Adds” for such Eligible Used Vehicle, as determined by reference to the most recently published National Automobile Dealers Association Used Car Guide or such comparable report or source of information reasonably designated by the Administrative Agent.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).
“Vehicle” means any automobile or truck (other than a recreational vehicle or towable) approved for highway use by any state of the United States.
“Voting Equity Interests” of any Person means the Equity Interests of such Person that are entitled to vote for members of the board of directors or other equivalent governing body of such Person.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares,
45
securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
46
and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements (provided that, for the purpose of calculating covenant compliance under Article VII, the effect of SFAS No. 133 shall not be applied), except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Debt of the Company and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
47
48
49
50
51
52
53
54
The Company 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 Company’s instructions or other irregularity, the Company will immediately notify the L/C Issuer. The Company shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
55
56
57
Number of days after | Percentage of New |
date of original invoice | Unit Invoiced Amount |
1 – 29 | 100% |
30 – 89 | 90% |
90 – 179 | 85% |
180 – 269 | 80% |
270 – 364 | 75% |
365 | 70% |
More than 365 | 0% |
| |
58
59
60
61
62
63
64
given day to be treated as though received at the opening of business on the next Business Day). Such notice of prepayment shall be on such form as may be approved by the Administrative Agent (including, in the case of any prepayment of a Revolving Credit Loan, any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent). The Borrowers shall effect any prepayment made under this Section 2.08 by paying to the Administrative Agent, for distribution to the applicable Lenders in accordance with their Applicable Percentage of the Loans in respect of the applicable Facility being prepaid subject to Section 2.21, the principal amount to be prepaid and accrued interest thereon to the date of prepayment.
65
66
67
68
69
70
71
72
to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, each Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Floor Plan Note or Revolving Credit Note which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Floor Plan Note or Revolving Credit Note and endorse thereon the date, applicable interest rate, amount and maturity of its Loans and payments with respect thereto.
73
With respect to any payment that the Administrative Agent makes for the account of the Lenders or the L/C Issuer hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrowers have not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrowers (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Company with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
74
75
76
Obligations due and payable to the other Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time (subject to any adjustments the Administrative Agent may require pursuant to Section 2.17)) of payment on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be (subject to any adjustments the Administrative Agent may require pursuant to Section 2.17), provided that:
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
77
78
79
80
81
82
83
84
85
86
87
88
89
90
without reference to the Floating Term SOFR component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon the Company’s receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Floating Term SOFR Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Floating Term SOFR component of the Base Rate) immediately if such Lender may not lawfully continue to maintain such Floating Term SOFR Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, the Administrative Agent, upon receipt of the copy of the demand made by such Lender to the Company, shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Floating Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Floating Term SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
91
then, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be on the relevant Adjustment Date or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Floating Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR plus the SOFR Adjustment 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 “Successor Rate”).
If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a monthly 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 Company may amend this Agreement solely for the purpose of replacing Floating Term SOFR or any then current Successor Rate in accordance with this Section 3.03 at the relevant Adjustment Date, with another alternate 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 “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth (5th) Business Day after the
92
Administrative Agent shall have posted such proposed amendment to all Lenders and the Company 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 Company 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 0%, the Successor Rate will be deemed to be 0% 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 implementing such Conforming Changes to the Company 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 of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer 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 the L/C Issuer hereunder (whether of
93
principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Company will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
94
95
96
97
Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement 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 Effective Date specifying its objection thereto.
Each Request for Credit Extension submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
98
Each Borrower represents and warrants to the Administrative Agent that:
and binding obligations, enforceable against each Obligated Party a party thereto in accordance with their respective terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
99
corporation, nor FreedomCare Insurance Services, LLC, a Minnesota limited liability company, nor F2 Creative, LLC, a Minnesota limited liability company, nor FRI, LLC, a Minnesota limited liability company, or nor Hart City RV Center, LLC, a Minnesota limited liability company, has any operations or employees, owns any assets or has any liabilities other than the assets and liabilities set forth on Schedule 5.04(c).
100
101
102
103
104
105
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Loan Parties shall comply with the following:
106
setting forth in each case with respect to deliveries under clauses (ii) and (iii), for each month in comparative form the figures for the corresponding periods in the previous fiscal year and the figures set forth for such periods in the Company’s budget for such fiscal year delivered to the Lenders pursuant to Section 6.01(m), all in reasonable detail, prepared by the Company in accordance with GAAP, and certified by any Responsible Officer of the Company as fairly presenting, in all material respects, the financial position of the Company and its Subsidiaries and its results of operations, subject to changes resulting from year-end adjustments.
107
108
109
Documents required to be delivered pursuant to Section 6.01(a), (b), (c), (d) or (f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet 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: (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any
110
such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak, ClearPar or another similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by any Borrower marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to any of the Borrowers or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger 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 that is not designated “Public Side Information.”
111
112
naming the Administrative Agent, for itself and for the benefit of itself and the Lenders as additional insureds (the “Additional Insureds”) and, with respect to property insurance covering the Collateral, naming the Administrative Agent and its successors and assigns as first loss payee under a standard
113
lender’s loss payee rider. Such insurance policies shall provide: (1) breach of warranty providing that the interest of the Additional Insureds shall not be invalidated by any action or inaction of any Loan Party, (2) waiver of subrogation, set-off or counterclaim by the insurer against Additional Insureds, (3) 30 days’ prior written notice of cancellation, termination or material modification to Additional Insureds (or 10 days’ prior written notice of cancellation or termination because of non-payment of premiums), (4) confirmation that coverage is primary and noncontributory with respect to any other insurance available for the protection of the Additional Insureds, (5) severability of interest clause in each liability policy providing each Additional Insured the same protection as would have been available had these policies been issued individually to each of them, except that this fact shall not in any event increase the total liability of the insurer beyond the limits set forth in the policies, and (6) that the Administrative Agent and other Additional Insureds and their respective subsidiaries and affiliates have no responsibility for premiums.
114
discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Without limiting the generality of this Section 6.06, each Loan Party: (i) shall maintain its Properties in compliance in all Material respects with any applicable Environmental Laws; (ii) shall obtain and maintain in full force and effect all governmental approvals required for its operations at or on its properties by any applicable Environmental Laws; (iii) shall cure as soon as practicable any material violation of applicable Environmental Laws with respect to any of its Properties; (iv) shall not, and shall not permit any other Person to, own or operate on any of its Properties any landfill or dump or hazardous waste treatment, storage or disposal facility as defined pursuant to the Resource Conservation and Recovery Act of 1980 or any comparable state law; (v) shall not use, generate, treat, store, release or dispose of Hazardous Materials at or on any of its Properties (including without limitation, any underground storage tanks) except in the ordinary course of its business and in Material compliance with all Environmental Laws; and (vi) shall notify the Administrative Agent in writing, and within a reasonable period of time, and provide any reasonably requested documents, upon learning of any Material environmental claim or Material violation of any Environmental Laws, or any release of a reportable quantity (as determined under any Environmental Law) of a Hazardous Material, or any claim arising out of or in connection with a release of a Hazardous Material, which arises in connection with any of its Properties, and any other environmental or health and safety condition which would reasonably be expected to result in any material interference with the use or operation of any of its Properties or could reasonably be expected to have a Material Adverse Effect. With respect to any release of Hazardous Materials, each Borrower shall conduct any necessary or required investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other response action necessary to remove, clean up or abate any material quantity of Hazardous Materials released or disposed at or on any of its properties as required by any applicable Environmental Law.
115
reasonably be expected to have a Material Adverse Effect and any Lien resulting from such nonpayment of any such tax or assessment or claim is and remains a Permitted Lien.
116
Controlled Deposit Account. The Borrowers shall take all such actions as the Administrative Agent deems necessary or advisable to send all remittances with respect to, or other proceeds of Floor Plan Vehicles or Units and other Collateral to the Administrative Agent’s Account to be applied to the Obligations. Upon receipt by any Loan Party of collections of cash and any proceeds of Collateral, such Loan Party shall immediately deposit all such payments into a Deposit Account or, upon the request of the Administrative Agent, a Controlled Deposit Account within a reasonable period of time following such request.
117
118
119
120
121
122
Floor Plan Unit with FEMA (or with any other state or federal agency working under disaster relief plans) by any Borrower, such Borrower shall execute and deliver to the Administrative Agent an Assignment of Rights and Proceeds, and deliver to FEMA (or such other state or federal agency) a Notice of Assignment of Claims under Government Contract, each in substantially the same form as Exhibit G hereto, or deliver to the Administrative Agent such other documents and take such other actions as may be required under applicable state or federal law to evidence and perfect the Lien of the Administrative Agent.
“Lessor has granted a security interest in the recreational vehicle/towable subject to this Lease and every right to payment with respect to this Lease (including without limitation every account, account receivable, instrument, note, draft, acceptance, document, and chattel paper) to Bank of America, N.A., as Administrative Agent. This Lease and all payments and proceeds of this Lease have been assigned to Bank of America, N.A., as Administrative Agent. No further transfer or disposition of the Lease or any payments or proceeds associated with this Lease is permitted. Any transfer of this Lease or any payments or proceeds associated with this Lease will violate the Credit Agreement previously entered into by FreedomRoads, LLC and certain of its affiliates, Bank of America, N.A., as administrative agent and collateral agent, and the other parties thereto, as the same may be amended, waived or otherwise modified from time to time.”
The Borrowers shall not retain any copies of any lease without the foregoing legend.
123
UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions, and maintain policies and procedures designed to promote and achieve compliance with such laws.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, each Loan Party shall comply with the following:
124
125
126
127
provided, however, in each case of clause (i), (ii), (iii) or (iv), that (subject to Section 2.09) the Company and its Subsidiaries shall be permitted to reinvest the Net Proceeds Amount of any Asset Disposition otherwise permitted under this Section 7.05(a) so long as such Net Proceeds Amount is reinvested within 180 days of such Asset Disposition in similar replacement property.
To the extent any Net Proceeds Amount, or any portion thereof, remains after the foregoing application thereof pursuant to clause (i), (ii), (iii) or (iv), as applicable, above, the applicable Loan Party may retain such excess amount for use in the ordinary course of its business.
128
pursuant to the Loan Documents, (ii) Permitted Liens and (iii) Liens in favor of the lessor with respect to any such leased real property or improvements, or (b) any Lien on any Deposit Account, except Liens in favor of the Administrative Agent pursuant to the Loan Documents.
No Borrower shall take or omit to take any action whereby the subordination of Subordinated Debt to the Obligations might be terminated, impaired or adversely affected.
129
Borrower under any Subordination Agreement or from waiving compliance by any Borrower with any provisions of any Subordination Agreement unless, as a condition of obtaining such waiver, such Borrower is required to comply with additional terms or conditions that could adversely affect the interests of any Borrower, the Administrative Agent or any Lender.
130
the transaction, whether as Lender, Administrative Agent, L/C Issuer, or otherwise) of Sanctions. The Loan Parties shall deliver to the Administrative Agent and Lenders any certification or other evidence requested from time to time by the Administrative Agent or any Lender, in the Administrative Agent’s sole discretion, confirming the Loan Parties’ compliance with this Section 7.20.
131
132
133
134
first, without duplication of payments to be made under Section 8.03(a), clause second, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, with respect to the Floor Plan Facility, in monitoring, verifying, protecting, preserving or enforcing the Liens on the Collateral, and in protecting, preserving or enforcing rights under this Agreement or any of the other Loan Documents, and in any event including all costs and expenses of a character which each Borrower has agreed to pay under Section 10.04 (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);
second, without duplication of payments made under Section 8.03(a), clause first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, with respect to the Letter of Credit Facility, in monitoring, verifying, protecting, preserving or enforcing the Liens on the Collateral, and in protecting, preserving or enforcing rights under this Agreement or any of the other Loan Documents, and in any event including all costs and expenses of a character which each Borrower has agreed to pay under Section 10.04 (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);
135
third, to the payment of any outstanding fees due under this Agreement to the Administrative Agent (in connection with the Floor Plan Facility) and the Floor Plan Lenders in accordance with the amount of such fees owing each;
fourth, to the payment of any outstanding fees due under this Agreement to the Administrative Agent (in connection with the Letter of Credit Facility) and the L/C Lenders, pro rata, in accordance with the amount of such interest and fees owing each;
fifth, to the payment of any outstanding interest due on the Floor Plan Loans, pro rata among the Floor Plan Lenders in accordance with the amount of such interest owing each;
sixth, to the payment of the outstanding principal of the Floor Plan Loans then due under Section 2.09(a) through (g) pro rata as among the Floor Plan Lenders in accordance with the then respective unpaid principal balances of such Loans;
seventh, to the payment of any outstanding interest due on L/C Borrowings and Unreimbursed Amounts;
eighth, to the payment of any outstanding L/C Borrowings and Unreimbursed Amounts;
ninth, to Cash Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Company pursuant to Sections 2.01 and 2.20;
tenth, to the payment of the principal amount of any Loans made by the Administrative Agent and the Floor Plan Lenders pursuant to Section 2.03(b) and for which Settlement has not been made pursuant to Section 2.17 pro rata as among the Administrative Agent and the Floor Plan Lenders in accordance with the amount of such principal owing to each;
eleventh, to the payment of the outstanding principal of the Floor Plan Loans pro rata as among the Floor Plan Lenders in accordance with the respective unpaid principal balances of such Loans;
twelfth, to the Administrative Agent and the Floor Plan Lenders pro rata in accordance with the amounts of any other Obligations with respect to the Floor Plan Facility of the Borrowers owing to them unless and until all such Obligations have been fully paid and satisfied;
thirteenth, to the payment of Obligations arising under Secured Hedge Agreements and Secured Cash Management Agreements of which the Administrative Agent has notice immediately prior to the time of such payment, in each case, pro rata as among the Lenders, Hedge Banks and Cash Management Banks in accordance with the respective unpaid amounts of such Obligations, subject to Section 9.10;
fourteenth, to the Administrative Agent, the Floor Plan Lenders and the L/C Lenders, in accordance with the amounts of any other Obligations of the Borrowers (with respect to the Floor Plan Facility or the Letter of Credit Facility) owing to them unless and until all such Obligations have been fully paid and satisfied;
136
fifteenth, to the Administrative Agent and the Revolving Credit Lenders, in the order and manner specified in clause (b) below, as if such remaining amount described in this clause fifteenth were proceeds of Non-Inventory Collateral; and
sixteenth, to the Administrative Agent and the Lenders, pro rata, in accordance with the amounts of any other Obligations of the Borrowers owing to them unless and until all such Obligations have been fully paid and satisfied.
first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, with respect to the Revolving Credit Facility, in monitoring, verifying, protecting, preserving or enforcing the Liens on the Collateral, and in protecting, preserving or enforcing rights under this Agreement or any of the other Loan Documents, and in any event including all costs and expenses of a character which each Borrower has agreed to pay under Section 10.04 (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);
second, to the payment of any outstanding fees due under this Agreement to the Administrative Agent (in connection with the Revolving Credit Facility) and the Revolving Credit Lenders in accordance with the amount of such fees owing each;
third, to the payment of any outstanding interest due on the Revolving Credit Loans, pro rata among the Revolving Credit Lenders in accordance with the amount of such interest owing each;
fourth, to the payment of the outstanding principal of the Revolving Credit Loans then due pro rata as among the Revolving Credit Lenders in accordance with the then respective unpaid principal balances of such Loans;
fifth, to the Administrative Agent and the Revolving Credit Lenders pro rata in accordance with the amounts of any other Obligations of the Borrowers (with respect to the Revolving Credit Facility) owing to them unless and until all such Obligations have been fully paid and satisfied;
sixth, to the Administrative Agent, Lenders, Hedge Banks and Cash Management Banks in the order and manner specified in clause (a) above, as if such remaining amount described in this clause sixth were proceeds of inventory Collateral; and
seventh, to the Administrative Agent and the Lenders, pro rata, in accordance with the amounts of any other Obligations of the Borrowers owing to them unless and until all such Obligations have been fully paid and satisfied.
137
first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, with respect to the Facilities, in monitoring, verifying, protecting, preserving or enforcing the Liens on the Collateral, and in protecting, preserving or enforcing rights under this Agreement or any of the other Loan Documents, and in any event including all costs and expenses of a character which each Borrower has agreed to pay under Section 10.04 (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);
second, to the payment of any outstanding fees due under this Agreement to the Administrative Agent (in connection with the Facilities), and the Lenders in accordance with the amount of such fees owing each;
third, to the payment of any outstanding interest due on the Loans, L/C Borrowings and Unreimbursed Amounts, pro rata among the Lenders in accordance with the amount of such interest owing each;
fourth, to the payment of the outstanding principal of the Loans and outstanding L/C Borrowings and Unreimbursed Amounts then due, pro rata as among the Lenders in accordance with the then respective unpaid principal balances of such Loans, L/C Borrowings and Unreimbursed Amounts;
fifth, to Cash Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Company pursuant to Sections 2.01 and 2.20;
sixth, to the Administrative Agent and the Lenders pro rata in accordance with the amounts of any other Obligations with respect to the Facilities of the Borrowers owing to them unless and until all such Obligations have been fully paid and satisfied;
seventh, to the payment of Obligations arising under Secured Hedge Agreements and Secured Cash Management Agreements of which the Administrative Agent has notice immediately prior to the time of such payment, in each case, pro rata as among the Lenders, Hedge Banks and Cash Management Banks in accordance with the respective unpaid amounts of such Obligations, subject to Section 9.10; and
eighth, to the Administrative Agent and the Lenders, pro rata, in accordance with the amounts of any other Obligations of the Borrowers owing to them unless and until all such Obligations have been fully paid and satisfied.
Subject to Sections 2.01(c) and 2.20, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause ninth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
138
Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Company nor any other Obligated Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
139
accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Obligated Party or Guarantor or any of their respective Subsidiaries or other Affiliates as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law;
140
141
142
143
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.13 and 10.04.
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 the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer or 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 Obligations secured by such Collateral, 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 (a) 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 an Obligated Party is subject, (b) 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 (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) 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 (n) of Section 10.01 of this Agreement), (iii) 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
144
Secured Party or acquisition vehicle to take any further action, and (iv) 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 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.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.09. In each case as specified in this Section 9.09, the Administrative Agent will, at the Company’s expense, execute and deliver to the applicable Obligated Party such documents as such Obligated Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.09.
The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate
145
prepared by any Obligated Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
146
147
funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part, a Rescindable Amount.
148
and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent
149
in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, the Company may replace such Non-Consenting Lender in accordance with Section 10.13; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Company to be made pursuant to this paragraph).
Notwithstanding any provision herein to the contrary, (x) this Agreement may be amended or amended and restated without the consent of any Lender (but with the consent of the Company and Administrative Agent) if, upon giving effect to such amendment or amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended or amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement and shall continue to be an Indemnitee hereunder and (y) if the Administrative Agent and the Company acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document (including the schedules and exhibits thereto), then the Administrative Agent and the Company shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
150
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). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
151
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 Obligated Parties or any of them 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 Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) 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, (b) the L/C Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.18), or (d) any Lender from filing
152
proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Obligated Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.18, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
153
154
155
156
1 By way of example, and without limiting the generality of Section 10.06(b)(ii), if a Lender (“Lender A”) has a $250,000,000 Floor Plan Commitment, a $2,650,176.68 Letter of Credit Commitment and a $5,000,000 Revolving Credit Commitment, and if Lender A wishes to assign one-half (i.e. $125,000,000) of its Floor Plan Commitment to an assignee (“Assignee B”), then Lender A must also assign one-half (i.e. $1,325,088.34) of its Letter of Credit Commitment and one-half (i.e. $2,500,000) of its Revolving Credit Commitment to Assignee B.
(or a holding company, investment vehicle or trust for, or owned or operated for the primary benefit of a natural Person).
157
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. The Company agrees that each Participant shall be entitled to the benefits of Sections 3.01, and 3.04 and to the same extent as if it were a Lender and had acquired its interest by
158
assignment pursuant to Section 10.06(b) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.05 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.05 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
159
For purposes of this Section, “Information” means all information received from any Obligated Party or any Subsidiary thereof relating to any Obligated Party or any Subsidiary thereof or their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any Obligated Party or any Subsidiary thereof, provided that, in the case of information received from an Obligated Party or any such Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
160
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning a Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
161
executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
162
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 Borrowers to require such assignment and delegation cease to apply.
Each party hereto agrees that (a) an assignment required pursuant to this Section 10.13 may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
Notwithstanding anything in this Section 10.13 to the contrary, (i) the Lender that acts as the L/C Issuer may not be replaced hereunder at any time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to such L/C Issuer or the depositing of cash collateral into a cash collateral account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.
163
164
limiting the generality of Section 10.04, the Borrowers shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding.
165
the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, neither the Administrative Agent nor the L/C Issuer is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Administrative Agent and/or the L/C Issuer has agreed to accept such Electronic Signature, the Administrative Agent and each of the Credit Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Credit Party without further verification and regardless of the appearance or form of such Electronic Signature, and (b) upon the request of the Administrative Agent or any Credit Party, any Communication executed using an Electronic Signature shall be promptly followed by a manually executed counterpart.
Neither the Administrative Agent nor the L/C Issuer shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s, or L/C Issuer’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). The Administrative Agent and L/C Issuer shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Communication (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution or signed using an Electronic Signature) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
Each of the Loan Parties and each Credit Party hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement and any other Loan Document based solely on the lack of paper original copies of this Agreement and/or such other Loan Document, and (ii) any claim against the Administrative Agent, each Credit Party and each Related Party for any liabilities arising solely from the Administrative Agent’s and/or any Credit Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
166
167
168
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[Signature pages follow.]
169
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
FREEDOMROADS, LLC,
a Minnesota limited liability company
By: | /s/ Thomas E. Kirn | |
Name: Thomas E. Kirn | | |
Title: Chief Financial Officer | | |
AMERICAN RV CENTERS, LLC,
a Minnesota limited liability company
ARIZONA RV CENTERS, LLC,
a Minnesota limited liability company
ATLANTIC RV CENTERS, LLC,
a Minnesota limited liability company
B & B RV, INC.,
a California corporation
BLAINE JENSEN RV CENTERS, LLC,
a Minnesota limited liability company
BODILY RV, INC.,
an Idaho corporation
BURNSIDE RV CENTERS, LLC,
a Minnesota limited liability company
CAMPING TIME RV CENTERS, LLC,
a Minnesota limited liability company
CAMPING WORLD LEASING COMPANY, LLC,
a Minnesota limited liability company
CAMPING WORLD RV SALES, LLC,
a Minnesota limited liability company
CULLUM & MAXEY CAMPING CENTER, INC.,
a Tennessee corporation
DUSTY’S CAMPER WORLD, LLC,
a Minnesota limited liability company
EMERALD COAST RV CENTER, LLC,
a Minnesota limited liability company
FOLEY RV CENTER, LLC,
a Minnesota limited liability company
By: | /s/ Thomas E. Kirn | |
Name: Thomas E. Kirn | | |
Title: Chief Financial Officer | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
FREEDOMROADS OPERATIONS COMPANY, LLC,
a Minnesota limited liability company
FREEDOMROADS RV, INC.,
a Delaware corporation
GARY’S RV CENTERS, LLC,
a Minnesota limited liability company
HOLIDAY KAMPER COMPANY OF COLUMBIA, LLC,
a Minnesota limited liability company
K&C RV CENTERS, LLC,
a Minnesota limited liability company
MEYER’S RV CENTERS, LLC,
a Minnesota limited liability company
NORTHWEST RV CENTERS, LLC,
a Minnesota limited liability company
OLINGER RV CENTERS, LLC,
a Minnesota limited liability company
RV WORLD, LLC,
a Minnesota limited liability company
SHIPP’S RV CENTERS, LLC,
a Minnesota limited liability company
SIRPILLA RV CENTERS, LLC,
a Minnesota limited liability company
SOUTHWEST RV CENTERS, LLC,
a Minnesota limited liability company
STIER’S RV CENTERS, LLC,
a Minnesota limited liability company
STOUT’S RV CENTER, LLC,
a Minnesota limited liability company
TOM JOHNSON CAMPING CENTER, INC.,
a North Carolina corporation
TOM JOHNSON CAMPING CENTER CHARLOTTE, INC.,
a North Carolina corporation
WHEELER RV LAS VEGAS, LLC,
a Minnesota limited liability company
By: | /s/ Thomas E. Kirn | |
Name: Thomas E. Kirn | | |
Title: Chief Financial Officer | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
BANK OF AMERICA, N.A.,
as Administrative Agent
By: | /s/ Michael Brashler | |
Name: Michael Brashler | | |
Title: Vice President | | |
BANK OF AMERICA, N.A.,
as a Lender and L/C Issuer
By: | /s/ Curt McGowan | |
Name: Curt McGowan | | |
Title: Sr. Vice President | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
JPMORGAN CHASE BANK, N.A.,
as a Lender
By: | /s/ Adam Sigman | |
Name: Adam Sigman | | |
Title: Executive Director | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: | /s/ Jaclyn Harty | |
Name: Jaclyn Harty | | |
Title: Vice President | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
MANUFACTURERS & TRADERS TRUST COMPANY,
as a Lender
By: | /s/ Matthew Fahey | |
Name: Matthew Fahey | | |
Title: SVP | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
BMO BANK N.A.,
as a Lender
By: | /s/ Jonathan Terrell | |
Name: Jonathan Terrell | | |
Title: Director | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: | /s/ Scott E. Rone | |
Name: Scott E. Rone | | |
Title: Vice President – Sr. Relationship Manager – National Accounts | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
WELLS FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC,
as a Lender
By: | /s/ Jayme Wyatt | |
Name: Jayme Wyatt | | |
Title: Executive Director | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
Flagstar Bank, N.A.,
as a Lender
By: | /s/ Mark C. Mazmanian | |
Name: Mark C. Mazmanian | | |
Title: First Senior Vice President | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
HUNTINGTON NATIONAL BANK,
as a Lender
By: | /s/ David Paoni | |
Name: David Paoni | | |
Title: Assistant Vice President | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
First-Citizens Bank & Trust Company,
as a Lender
By: | /s/ Gregory Burke | |
Name: Gregory Burke | | |
Title: VP | | |
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page
MASSMUTUAL ASSET FINANCE LLC,
as a Lender
By: | /s/ Donald Buttler | | |
Name: Donald Buttler | | ||
Title: Managing Director | | ||
NINTH AMENDED AND RESTATED CREDIT AGREEMENT
(FreedomRoads, LLC)
Signature Page