8-K
false000149425900014942592022-09-262022-09-26

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

CURRENT REPORT

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

 

Date of Report (Date of earliest event reported): September 26, 2022

 

 

 

 

CarGurus, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

 

Delaware

(State or other jurisdiction of incorporation or organization)

001-38233

(Commission File Number)

04-3843478

(I.R.S. Employer

Identification No.)

 

 

 

 

 

2 Canal Park, 4th Floor

Cambridge, Massachusetts 02141

(Address of principal executive offices, including Zip Code)

 

 

 

Registrant’s telephone number, including area code: (617) 354-0068

 

 

 

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:

 

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

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

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

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

 

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

Title of each class

 

Trading Symbol(s)

 

Name of each exchange on which registered

Class A Common Stock,

par value $0.001 per share

 

CARG

 

The Nasdaq Stock Market LLC

(Nasdaq Global Select Market)

 

 

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

Emerging growth company

 

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

 


 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

On September 26, 2022 (the “Closing Date”), CarGurus, Inc. (the “Company”) entered into a Credit Agreement (the “Agreement”) by and among the Company, PNC Bank, National Association, as administrative agent and collateral agent and an L/C Issuer, and the other lenders, L/C Issuers and parties thereto from time to time. The Agreement consists of a revolving credit facility with a maximum aggregate principal amount of availability of $400.0 million (the “Credit Facility”), which the Company may draw upon from time to time subject to the terms and conditions set forth in the Agreement. The Credit Facility includes a letter of credit sub-facility of up to $50.0 million in the aggregate. Capitalized terms used in this Current Report on Form 8-K without definition shall have the meanings assigned thereto in the Agreement.

On the Closing Date, there were no borrowings and no letters of credit outstanding under the Credit Facility. The Credit Facility is scheduled to mature on September 26, 2027.

Currency, Interest Rate and Fees

Extensions of credit under the Credit Facility may be denominated in U.S. dollars or an alternative currency, including pounds sterling, euro, Canadian dollars and other agreed currencies from time to time. Borrowings under the Credit Facility bear interest at a rate per annum equal to, at the Company’s option, (i) for each SOFR Loan, the sum of the Adjusted Term SOFR Rate for such Interest Period and the Applicable Rate; (ii) for each Alternative Currency Loan (other than any Alternative Currency Loan bearing interest based on Adjusted Daily Simple RFR), the sum of the Adjusted Alternative Currency Rate and the Applicable Rate for Alternative Currency Loans; (iii) for each RFR Loan, the sum of the Adjusted Daily Simple RFR and the Applicable Rate; or (iv) for each Base Rate Loan, the sum of the Base Rate plus the Applicable Rate. The Applicable Rate ranges from 1.00% to 1.50% for SOFR Loans, Alternative Currency Loans and Adjusted Daily Simple RFR Loans and 0.00% to 0.50% for Base Rate Loans Rate and is determined based on the ratio of the outstanding principal amount of the Company’s secured indebtedness to the trailing four quarters of consolidated EBITDA (as determined under the Agreement, the “Consolidated Secured Net Leverage Ratio”), as measured on a quarterly basis. The Agreement also requires the Company to pay a commitment fee to the lenders in respect of the unutilized revolving commitments at a rate ranging from 0.125% to 0.175% based on the Consolidated Secured Net Leverage Ratio, as determined on a quarterly basis. The Company will also pay letter of credit fees to the lenders in an amount equal to (i) the Applicable Rate then in effect for SOFR Loans (bearing interest based on the Adjusted Daily Simple RFR) plus a fronting fee of 0.125%, multiplied by (ii) the daily maximum amount then available to be drawn under such letter of credit, as determined on a quarterly basis.

Guarantees and Security

The obligations under the Credit Facility are guaranteed on the Closing Date by the Company and its subsidiary, Auto List, Inc. (the “Borrower Parties”). The obligations under the Credit Facility will be guaranteed in the future by the Company’s newly formed or acquired wholly-owned U.S. subsidiaries, if any, subject to certain conditions and exceptions set forth in the Agreement, and by CarOffer, LLC, a Delaware limited liability company (“CarOffer”), under certain circumstances at such time it were to become a wholly-owned subsidiary of the Company. In addition, the obligations under the Credit Facility are secured by a first priority lien on substantially all tangible and intangible property of the Borrower Parties, including any future guarantors, and pledges of the equity of CarOffer and certain wholly-owned subsidiaries, in each case subject to certain exceptions, limitations and exclusions from the collateral.

Certain Covenants and Events of Default

The Agreement contains customary affirmative covenants, including financial statement reporting requirements and delivery of compliance certificates, including with respect to the Consolidated Secured Net Leverage Ratio. The Agreement also contains customary negative covenants that limit the Company’s and its Restricted Subsidiaries’ ability to, among other things, grant or incur liens, incur additional indebtedness, make certain restricted investments or payments, including payment of dividends on its capital stock, enter into certain mergers and acquisitions or engage in certain asset sales, subject in each case to certain exceptions. In addition, the Agreement contains a financial covenant that the Consolidated Secured Net Leverage Ratio, as of the last day of any fiscal quarter of the Borrower, commencing with the fiscal quarter ending September 30, 2022, shall not be greater than 3.50:1.00, except that upon the consummation of certain acquisitions for the quarter in which such acquisition is consummated and for the immediately succeeding three fiscal quarters, the permitted ratio shall be automatically increased to 4.00:1.00, provided that following such four-quarter period, the ratio will automatically step down to 3.50:1.00 for at least one fiscal quarter even if there is a subsequent acquisition that would otherwise require a 4.00:1.00 ratio, with such increased ratio to apply following such fiscal quarter.

The Credit Agreement also contains customary events of default (subject to certain exceptions, thresholds and grace periods), such as the failure to pay obligations when due, breach of certain covenants, including the financial covenant, cross-default or cross-acceleration of certain indebtedness, bankruptcy-related defaults, judgment defaults, and the occurrence of certain change of control

 


 

 

 

events involving the Company. The occurrence of an event of default may result in the termination of the Agreement and acceleration of repayment obligations with respect to any outstanding loans or letters of credit under the Credit Facility.

The foregoing description of the material terms of the Agreement does not purport to be complete and is subject to, and is qualified in its entirety by, reference to the Agreement, which is filed as Exhibit 10.1 with this Current Report on Form 8-K.

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

The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 7.01 Regulation FD Disclosure.

The Board of the Directors of the Company has determined not to exercise the Company’s call right (the “2022 Call Right”) to acquire up to an additional 25% of the fully diluted capitalization of CarOffer. The Company holds the 2022 Call Right under the Third Amended and Restated Limited Liability Company Agreement, dated November 23, 2021, by and among the Company, CarOffer, CarOffer Investors Holding, LLC, a Delaware limited liability company (“TopCo”), each of the Members of TopCo, and CarOffer MidCo, LLC, a Delaware limited liability company (“MidCo”) (the “Operating Agreement”), as amended by the Corrective Amendment, dated May 6, 2022, by and among the Company, CarOffer, TopCo and MidCo (the “Amendment”). The Company’s determination as to its 2022 Call Right does not alter its call rights or the put rights held by the representative of the holders of the remaining 49% equity interest in CarOffer (the “Remaining Equity”), in each case, that such parties may exercise in the second half of 2024. The mechanics of whether such call or put right is ultimately exercised in 2024 and the purchase price calculation methodologies associated with such rights are as set forth in the Operating Agreement and the Amendment, which are attached as Exhibit 10.27 to the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 25, 2022 and Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 9, 2022, respectively.

The information in this Item 7.01 is intended to be furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit No.

 

Description

10.1*

 

Credit Agreement, dated September 26, 2022, by and among CarGurus, Inc., as borrower, PNC Bank, National Association, as administrative agent, collateral agent and an L/C Issuer, and the other lenders, L/C Issuers and other parties party thereto.

104

 

Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

*

Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K and will be provided on a supplemental basis to the Securities and Exchange Commission upon request.

 

 


 

 

 

 

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.

 

 

 

CARGURUS, INC.

 

 

Date: September 29, 2022

By:

/s/ Javier Zamora

 

Name:

Javier Zamora

 

Title:

General Counsel and Corporate Secretary

 

 


EX-10.1

EXHIBIT 10.1

 

EXECUTION VERSION

CREDIT AGREEMENT

dated as of September 26, 2022

among

CARGURUS, INC.,
as Borrower,

PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent and an L/C Issuer,

and

THE LENDERS AND OTHER L/C ISSUERS
FROM TIME TO TIME PARTY HERETO

____________________________________

 

PNC CAPITAL MARKETS LLC and CITIBANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners,

CITIBANK, N.A.,
as Syndication Agent,

CITIZENS BANK, N.A.,
as Documentation Agent,

and

PNC CAPITAL MARKETS LLC,
as Sustainability Structuring Agent

 

 

 


Table of Contents

 

Page

 

Article I DEFINITIONS AND ACCOUNTING TERMS

1

Section 1.01 Defined Terms

1

Section 1.02 Other Interpretive Provisions

110

Section 1.03 Accounting Terms

115

Section 1.04 Rounding

116

Section 1.05 References to Agreements and Laws

116

Section 1.06 Times of Day

116

Section 1.07 Timing of Payment or Performance

117

Section 1.08 Currency Equivalents Generally

117

Section 1.09 Letter of Credit Amounts

118

Section 1.10 Pro Forma Calculations

118

Section 1.11 Calculation of Consolidated Total Assets Basket

119

Section 1.12 Cashless Rollovers

119

Section 1.13 Interest Rates

119

Section 1.14 Limited Condition Transaction

120

Article II THE COMMITMENTS AND CREDIT EXTENSIONS

121

Section 2.01 The Loans

121

Section 2.02 Borrowings, Conversions and Continuations of Loans

121

Section 2.03 Letters of Credit

124

Section 2.04 [Reserved]

135

Section 2.05 Prepayments

135

Section 2.06 Termination or Reduction of Commitments

137

Section 2.07 Repayment of Loans

139

Section 2.08 Interest

139

Section 2.09 Fees

140

Section 2.10 Computation of Interest and Fees

140

Section 2.11 Evidence of Indebtedness

141

Section 2.12 Payments Generally; Administrative Agent’s Clawback

142

Section 2.13 Sharing of Payments

144

Section 2.14 Incremental Facilities

145

Section 2.15 Reserved

151

Section 2.16 Cash Collateral

152

Section 2.17 Defaulting Lenders

153

Section 2.18 Specified Refinancing Debt

154

Section 2.19 Extension of Revolving Credit Commitments

157

Section 2.20 Reserved

160

Section 2.21 Alternative Currencies

161

Article III TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

161

Section 3.01 Taxes

161

Section 3.02 Alternate Rate of Interest.

166

Section 3.03 Illegality

167

Section 3.04 [Reserved]

168

Section 3.05 Increased Cost and Reduced Return; Capital Adequacy and Liquidity Requirements

168

 

i


Table of Contents

(continued)

Page

 

Section 3.06 Funding Losses

170

Section 3.07 Matters Applicable to All Requests for Compensation

170

Section 3.08 Replacement of Lenders Under Certain Circumstances

172

Article IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

174

Section 4.01 Conditions to the Initial Credit Extension on the Closing Date

174

Section 4.02 Conditions to Certain Credit Extensions Occurring After the Closing Date

176

Article V REPRESENTATIONS AND WARRANTIES

177

Section 5.01 Existence, Qualification and Power; Compliance with Laws

177

Section 5.02 Authorization; No Contravention

178

Section 5.03 Governmental Authorization; Other Consents

178

Section 5.04 Binding Effect

178

Section 5.05 Financial Statements; No Material Adverse Effect

178

Section 5.06 Litigation

179

Section 5.07 Use of Proceeds

179

Section 5.08 Ownership of Property; Liens

179

Section 5.09 Environmental Compliance

180

Section 5.10 Taxes

180

Section 5.11 ERISA Compliance

180

Section 5.12 Subsidiaries; Capital Stock

181

Section 5.13 Margin Regulations; Investment Company Act

181

Section 5.14 Disclosure

182

Section 5.15 Compliance with Laws

182

Section 5.16 Intellectual Property; Licenses, Etc

182

Section 5.17 Solvency

183

Section 5.18 Validity, Priority and Perfection of Security Interests in the Collateral

183

Section 5.19 Sanctions; OFAC

183

Section 5.20 Anti-Corruption Laws

184

Section 5.21 Labor Matters

184

Article VI AFFIRMATIVE COVENANTS

185

Section 6.01 Financial Statements

185

Section 6.02 Certificates; Other Information

186

Section 6.03 Notices

188

Section 6.04 Payment of Taxes

189

Section 6.05 Preservation of Existence, Etc

189

Section 6.06 Maintenance of Properties

189

Section 6.07 Maintenance of Insurance

190

Section 6.08 Compliance with Laws

190

Section 6.09 Maintenance of Books and Records

190

Section 6.10 Inspection Rights

191

Section 6.11 Use of Proceeds

191

Section 6.12 Covenant to Guarantee Obligations and Give Security

192

Section 6.13 Compliance with Environmental Laws

195

Section 6.14 Further Assurances

195

 

ii

 


Table of Contents

(continued)

Page

 

Section 6.15 [Reserved]

196

Section 6.16 Post-Closing Undertakings

196

Section 6.17 No Change in Line of Business; Fiscal Year

196

Section 6.18 Unrestricted Subsidiaries

196

Section 6.19 Transactions with Affiliates

197

Article VII NEGATIVE COVENANTS

201

Section 7.01 Indebtedness

201

Section 7.02 Limitations on Liens

211

Section 7.03 Fundamental Changes

211

Section 7.04 Asset Sales

214

Section 7.05 Restricted Payments

215

Section 7.06 Burdensome Agreements

224

Section 7.07 Massachusetts Security Corporation

226

Section 7.08 Financial Covenant

226

Article VIII EVENTS OF DEFAULT AND REMEDIES

227

Section 8.01 Events of Default

227

Section 8.02 Remedies Upon Event of Default.

230

Section 8.03 Right to Cure

231

Section 8.04 Application of Funds

233

Article IX ADMINISTRATIVE AGENT AND OTHER AGENTS

235

Section 9.01 Appointment and Authorization of Agents

235

Section 9.02 Delegation of Duties

236

Section 9.03 Liability of Agents

236

Section 9.04 Reliance by Agents

238

Section 9.05 Notice of Default

239

Section 9.06 Credit Decision; Disclosure of Information by Agents

239

Section 9.07 Indemnification of Agents

240

Section 9.08 Agents in Their Individual Capacities

241

Section 9.09 Successor Agents

241

Section 9.10 Administrative Agent May File Proofs of Claim

243

Section 9.11 Collateral and Guaranty Matters

243

Section 9.12 Other Agents; Arranger and Managers

246

Section 9.13 Secured Cash Management Agreements and Secured Hedge Agreements

246

Section 9.14 Appointment of Supplemental Agents and Incremental Arrangers

246

Section 9.15 Intercreditor Agreement

248

Section 9.16 Withholding Tax

248

Section 9.17 Credit Bidding

249

Section 9.18 Certain ERISA Matters

250

Section 9.19 Erroneous Payments

251

Article X MISCELLANEOUS

254

Section 10.01 Amendments, Etc

254

Section 10.02 Notices; Electronic Communications

258

Section 10.03 No Waiver; Cumulative Remedies; Enforcement

261

 

iii

 


Table of Contents

(continued)

Page

 

Section 10.04 Expenses

262

Section 10.05 Indemnification by the Borrower

263

Section 10.06 Payments Set Aside

265

Section 10.07 Successors and Assigns

265

Section 10.08 Confidentiality

273

Section 10.09 Setoff

275

Section 10.10 Interest Rate Limitation

275

Section 10.11 Counterparts

276

Section 10.12 Integration; Effectiveness

276

Section 10.13 Survival of Representations and Warranties

276

Section 10.14 Severability

277

Section 10.15 Governing Law; Jurisdiction; Etc

277

Section 10.16 Service of Process

278

Section 10.17 Waiver of Right to Trial by Jury

278

Section 10.18 Binding Effect

278

Section 10.19 No Advisory or Fiduciary Responsibility

278

Section 10.20 Affiliate Activities

279

Section 10.21 Electronic Execution of Assignments and Certain Other Documents

279

Section 10.22 USA PATRIOT Act

280

Section 10.23 Judgment Currency

280

Section 10.24 Acknowledgement and Consent to Bail-In of Affected Financial Institutions

280

Section 10.25 Acknowledgement Regarding Any Supported QFCs

281

Article XI CO-BORROWER ARRANGEMENTS

282

Section 11.01 Addition of Co-Borrowers

282

Section 11.02 Status of Co-Borrowers

284

Section 11.03 Resignation of Co-Borrowers

284

 

 

 

iv

 


 

SCHEDULES

Schedule 1 Subsidiary Guarantors

Schedule 1.01(f) Closing Date L/C Issuers and Letter of Credit Sublimits

Schedule 2.01 Commitments and Pro Rata Shares

Schedule 5.08 Material Real Property

Schedule 5.12 Subsidiaries

Schedule 5.16 IP Rights

Schedule 6.16 Post-Closing Undertakings

Schedule 7.01 Indebtedness

Schedule 7.02 Liens

Schedule 7.04 Scheduled Asset Sales

Schedule 7.05 Investments

Schedule 8.01 Events of Default - Supplemental Terms

Schedule 10.02 Administrative Agent’s Office, Certain Addresses for Notices

EXHIBITS

Form of

Exhibit A Committed Loan Notice

Exhibit B-1 [Reserved]

Exhibit B-2 Revolving Credit Note

Exhibit C Compliance Certificate

Exhibit D-1 Assignment and Assumption

Exhibit D-2 Administrative Questionnaire

Exhibit D-3 [Reserved]

Exhibit G-1 Junior Lien Intercreditor Agreement

Exhibit G-2 Pari Passu Intercreditor Agreement

Exhibit H Intercompany Subordination Agreement

Exhibit I-1 U.S. Tax Compliance Certificate

Exhibit I-2 U.S. Tax Compliance Certificate

Exhibit I-3 U.S. Tax Compliance Certificate

Exhibit I-4 U.S. Tax Compliance Certificate

Exhibit J Optional Prepayment Notice

Exhibit K Co-Borrower Joinder Agreement

Exhibit L [Reserved]

Exhibit M Solvency Certificate

Exhibit N Secured Party Designation Notice

 

 

v

 


 

CREDIT AGREEMENT

This CREDIT AGREEMENT is entered into as of September 26, 2022, among CarGurus, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), each L/C Issuer party hereto and PNC Bank, National Association (“PNC”), as Administrative Agent, Collateral Agent and an L/C Issuer.

PRELIMINARY STATEMENTS

WHEREAS, the Borrower has requested that, upon the satisfaction or waiver of the conditions precedent set forth in the applicable provisions of Article IV below, the applicable Lenders make available to the Borrower a $400,000,000 multicurrency revolving credit facility for the making, from time to time, of revolving loans and the issuance, from time to time, of letters of credit, in each case on the terms and subject to the conditions set forth in this Agreement.

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

Article I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01 Defined Terms. As used in this Agreement (including, for the avoidance of doubt, the Exhibits and Schedules hereto), the following terms shall have the meanings set forth below:

Acquired Indebtedness” means, with respect to any specified Person, (a) Indebtedness of any other Person existing at the time such other Person is merged, amalgamated or consolidated with or into or becomes a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is Incurred in connection with, or in contemplation of, such other Person merging, amalgamating or consolidating with or into, or becoming a Restricted Subsidiary of, such specified Person, and (b) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

Acquisition” means any transaction or series of transactions consummated on or after the Closing Date, by which any Borrower Party, whether through a single transaction or a series of related transactions, (a) acquires any going business, division, line of business or business unit or all or substantially all of the assets of any Person, whether through purchase of assets, merger, consolidation or otherwise or (b) directly or indirectly acquires Capital Stock of a Person, whether by purchase of such Equity Interest or upon the exercise of an option or warrant for, or conversion of securities into, such Equity Interest, including by way of merger or consolidation.

Adjusted Alternative Currency Rate” means the Adjusted CDOR Rate, the Adjusted EURIBOR Rate, Adjusted Daily Simple RFR or other adjusted rate with respect to an Alternative Currency elected pursuant to Section 2.21, as applicable.

 


 

Adjusted Cash” means the amount of unrestricted (other than restrictions regarding (a) Liens in favor of the Secured Parties and (b) bankers’ Liens) cash after giving effect to unrealized gains and losses under (and as determined by) any currency Swap Contracts in place at the time of determination (but only with respect to the then-elapsed portion of the current monthly or quarterly (as applicable under the relevant currency Swap Contract) calculation period thereunder).

Adjusted CDOR Rate” means, with respect to any Alternative Currency Borrowing denominated in Canadian Dollars for any Interest Period, an interest rate per annum equal to the CDOR Rate for such Interest Period; provided that if the Adjusted CDOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

Adjusted Daily Simple RFR” means, with respect to any RFR Borrowing denominated in Pounds Sterling, an interest rate per annum equal to (a) the Daily Simple RFR for Pounds Sterling plus (b) 0.0326%; provided that if Adjusted Daily Simple RFR as so determined would be less than the Floor (for the avoidance of doubt, calculated after giving effect to clause (b)), such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

Adjusted EURIBOR Rate” means, with respect to any Alternative Currency Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to the EURIBOR Rate for such Interest Period; provided that if the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

Adjusted Term SOFR Rate” means, with respect to any Term SOFR Borrowing for any Interest Period, an interest rate per annum equal to (a) Term SOFR for such Interest Period, plus (b) the Term SOFR Adjustment; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor (for the avoidance of doubt, calculated after giving effect to clause (b)), such rate shall be deemed to be equal to the Floor.

Administrative Agent” means PNC acting through such of its Affiliates or branches as it may designate, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent permitted by the terms hereof.

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 the Borrower and the Lenders.

Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-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” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any

2

 

 


 

Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

Affiliate Transaction” has the meaning specified in Section 6.19(a).

Agent Fee Letter” means that certain amended and restated fee letter, dated as of the Closing Date, by and among the Borrower, PNC, and PNC Capital Markets LLC.

Agent-Related Distress Event” means, with respect to the Administrative Agent, the Collateral Agent or any Person that directly or indirectly controls the Administrative Agent or the Collateral Agent (each, a “Distressed Agent-Related Person”), a voluntary or involuntary case with respect to such Distressed Agent-Related Person under any Debtor Relief Law is commenced, or a custodian, conservator, receiver or similar official is appointed for such Distressed Agent-Related Person or any substantial part of such Distressed Agent-Related Person’s assets, or such Distressed Agent-Related Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Agent-Related Person to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in the Administrative Agent, the Collateral Agent or any Person that directly or indirectly controls the Administrative Agent by a Governmental Authority or an instrumentality thereof, so long as such ownership interest does not result in or provide the Administrative Agent or the Collateral Agent 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 the Administrative Agent or the Collateral Agent (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with the Administrative Agent or the Collateral Agent.

Agent-Related Persons” means each Agent, together with its Related Parties.

Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Arrangers, the Incremental Arrangers and the Supplemental Agents (if any).

Agreed Currency” means Dollars and each Alternative Currency.

Agreement” means this credit agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Agreement Currency” has the meaning specified in Section 10.23.

Aggregate Commitments” means the Commitments of all the Lenders.

AHYDO Catch-up Payment” means any payment required to be made (as determined by the Borrower in its sole discretion) under the terms of Indebtedness in order to avoid the application of Section 163(e)(5) of the Code to such Indebtedness.

Alternative Currency” means (a) Euros, Pounds Sterling and Canadian Dollars and (b) any currency added pursuant to Section 2.21.

3

 

 


 

Alternative Currency Borrowing” means a Borrowing comprising of Alternative Currency Loans.

Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent, in its reasonable discretion, by reference to the applicable Bloomberg page (or such other publicly available service for displaying exchange rates as reasonably determined by the Administrative Agent and the Borrower from time to time), to be the exchange rate for the purchase of such Alternative Currency with Dollars on the date that is (i) with respect to RFR Loans and Letters of Credit to which an RFR would apply, the applicable Daily Simple RFR Lookback Day, (ii) with respect to any Alternative Currency Loans and Letters of Credit denominated in Canadian Dollars or Euros, the applicable Eurocurrency Rate Lookback Day, and (iii) with respect to any Alternative Currency Loans and Letters of Credit denominated in any other currency (excluding Canadian Dollars, Euros, and Pounds Sterling), on the date which is two (2) Business Days immediately preceding the date of determination, or otherwise with respect to Loans to which any other “Interest Period” option applies, the lookback date applicable thereto, in each case, prior to the date as of which the foreign exchange computation is made; provided, however, that if no such rate is available, the “Alternative Currency Equivalent” shall be reasonably determined by the Administrative Agent and the Borrower or, in the absence of such agreement, such rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of Dollars for delivery two Business Days later).

Alternative Currency Loans” means Loans denominated in an Alternative Currency.

Anticipated Cure Deadline” has the meaning specified in Section 8.03(a).

Anti-Corruption Laws” has the meaning specified in Section 5.20.

Anti-Terrorism Laws” means Laws relating to the prohibition of terrorism or money laundering or economic sanctions, including Executive Order No. 13224, the PATRIOT Act, and the Laws comprising or implementing the Bank Secrecy Act, 31 U.S.C §5311, et. seq., the International Emergency Economic Powers Act, 50 U.S.C. §1701, et. seq., the Trading with the Enemy Act, 50 U.S.C. App 1, et. seq., 18 U.S.C. §2332d and 18 U.S.C. §2339b.

Applicable Commitment Fee” means a percentage per annum equal to (a) from the Closing Date until the first Business Day that immediately follows the date on which the Compliance Certificate is required to be delivered pursuant to Section 6.02(a) in respect of the first full fiscal quarter ending after the Closing Date, 0.125% per annum, and (b) thereafter, the applicable percentage per annum set forth below, as determined by reference to the Consolidated Secured Net Leverage Ratio, as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

4

 

 


 

Pricing Level

Consolidated Secured Net Leverage Ratio

Applicable Commitment Fee

1

Greater than or equal to 2.00:1.00

0.175%

2

Less than 2.00:1.00 and greater than or equal to 1.00:1.00

0.150%

3

Less than 1.00:1.00

0.125%

 

Any increase or decrease in the Applicable Commitment Fee resulting from a change in the Consolidated Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date the applicable Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that “Pricing Level 1” shall apply without regard to the Consolidated Secured Net Leverage Ratio at any time after the date on which any annual or quarterly financial statement was required to have been delivered pursuant to Section 6.01(a) or Section 6.01(b) (after giving effect to the grace period set forth in Section 8.01(c)) but was not delivered (or the Compliance Certificate related to such financial statements was required to have been delivered pursuant to Section 6.02(a) (after giving effect to the grace period set forth in Section 8.01(b)) but was not delivered), commencing with the first Business Day immediately following such date and continuing until the first Business Day immediately following the date on which such financial statements (or, if later, the Compliance Certificate related to such financial statements) are delivered.

Applicable Intercreditor Arrangements” means (i) the Junior Lien Intercreditor Agreement, (ii) the Pari Passu Intercreditor Agreement and (iii) any other intercreditor or subordination agreement or arrangement (which may take the form of a “waterfall” or similar provision), as applicable, the terms of which are (a) consistent with market terms (as determined by the Borrower and the Administrative Agent in good faith) governing arrangements for the sharing and/or subordination of liens and/or arrangements relating to the distribution of payments, as applicable, at the time the relevant intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto or (b) reasonably acceptable to the Borrower and the Administrative Agent; provided, that, with respect to this clause (iii)(b), the terms shall be deemed reasonably acceptable to the Administrative Agent and/or Collateral Agent (and the Administrative Agent and/or Collateral Agent shall be automatically and irrevocably deemed to have been directed by the Lenders to enter into such other intercreditor agreement) if such intercreditor agreement is either (A) substantially in the form of (x) Exhibit G-1 as modified solely with immaterial changes or to add new parties or (y) Exhibit G-2 as modified solely with immaterial changes or to add new parties, or (B) posted to the Lenders and not objected to by the Required Lenders within ten (10) Business Days of the posting thereof.

Applicable Jurisdiction” means (a) as of the Closing Date, the United States, Canada, England and Wales, and Ireland, and (b) after the Closing Date, any other jurisdiction mutually agreed among the Borrower, the Revolving Credit Lenders of the applicable Tranche, as applicable, and the Administrative Agent, in each case of this clause (b), acting reasonably and in good faith.

Applicable Rate” means a percentage per annum equal to (a) from the Closing Date until the first Business Day that immediately follows the date on which the Compliance Certificate is required to be delivered pursuant to Section 6.02(a) in respect of the first full fiscal quarter ending

5

 

 


 

after the Closing Date, 1.00% per annum for SOFR Loans and Alternative Currency Loans, 0.00% per annum for Base Rate Loans and (b) thereafter, the applicable percentage per annum set forth below, as determined by reference to the Consolidated Secured Net Leverage Ratio, as set forth in the then most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

Pricing Level

Consolidated Secured Net Leverage Ratio

SOFR Loans and Alternative Currency Loans

Base Rate Loans

1

Greater than or equal to 2.00:1.00

1.50%

0.50%

2

Less than 2.00:1.00 and greater than or equal to 1.00:1.00

1.25%

0.25%

3

Less than 1.00:1.00

1.00%

0.00%

 

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that “Pricing Level 1” for the table set forth in clause (a) above shall apply without regard to the Consolidated Secured Net Leverage Ratio, at any time after the date on which any annual or quarterly financial statement was required to have been delivered pursuant to Section 6.01(a) or Section 6.01(b) (after giving effect to the grace period set forth in Section 8.01(c)) but was not delivered (or the Compliance Certificate related to such financial statements was required to have been delivered pursuant to Section 6.02(a) (after giving effect to the grace period set forth in Section 8.01(b)) but was not delivered), commencing with the first Business Day immediately following such date and continuing until the first Business Day immediately following the date on which such financial statements (or, if later, the Compliance Certificate related to such financial statements) are delivered.

Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds Loans made under such Facility at such time, and (b) with respect to the Letter of Credit Sublimit, (i) each L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders.

Approved Commercial Bank” means a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000.

Approved Fund” means any Fund that is not a Disqualified Lender and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender which Affiliate is not a Disqualified Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender and controls such Lender, in each case of this clause (c), which entity or Affiliate thereof is not a Disqualified Lender.

Arrangers” means each of PNC Capital Markets LLC and Citibank, N.A., in their respective capacities as exclusive joint lead arrangers and bookrunners.

6

 

 


 

Asset Sale” means:

(i) the sale, conveyance, transfer or other disposition (whether in a single transaction or a series of related transactions) of property or assets of any Borrower Party (including any disposition of property to a Divided LLC or Divided LP pursuant to an LLC Division or LP Division, respectively, or any allocation of assets to any Series LLC or Series LP), or

(ii) the issuance or sale of Equity Interests (other than Preferred Stock and Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 7.01 and directors’ qualifying shares or shares or interests required to be held by foreign nationals or other third parties to the extent required by applicable law) of any Restricted Subsidiary of the Borrower (other than to the Borrower or another Restricted Subsidiary) (whether in a single transaction or a series of related transactions),

(each of the foregoing referred to in this definition as a “Disposition”; the term “Dispose” as a verb has a corresponding meaning).

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

(a) a sale, exchange or other Disposition of cash, Cash Equivalents or Investment Grade Securities of the Borrower Parties for Fair Market Value or otherwise in the ordinary course of business, or of obsolete, damaged, unnecessary, surplus, immaterial, unsuitable or worn out equipment or other assets in the ordinary course of business, or sales, conveyances, transfers or Dispositions of property not material to or no longer used, useful or economically practicable to maintain in the conduct of the business of the Borrower Parties (including allowing any registrations or any applications for registration of any intellectual property or other intellectual property rights that are immaterial or no longer used, useful or economically practicable to maintain in the conduct of the business of the Borrower Parties to lapse or become abandoned, or otherwise selling, licensing, transferring or Disposing of any such intellectual property rights that are immaterial or no longer used, useful or economically practicable to maintain in the conduct of the business of the Borrower Parties);

(b) any Disposition in compliance with Section 7.03 other than any provision of Section 7.03 that permits dispositions permitted under this Agreement (including under Section 7.04);

(c) any Restricted Payment that is permitted to be made, and is made, pursuant to Section 7.05 (including pursuant to any exceptions provided for in the definition of “Restricted Payment”) or any Permitted Investment;

(d) so long as no Event of Default has occurred and is continuing at such time or would immediately result therefrom, any Disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary with an aggregate Fair Market Value of less than or equal to (i) for, a single transaction or series of related transactions, the greater of (x) $25,000,000 and (y) 10.0% of Four Quarter Consolidated EBITDA and (ii) for all such Dispositions made in reliance on this clause (d) in any calendar year, the greater of (x) $62,500,000 and (y) 25.0% of Four Quarter Consolidated EBITDA;

7

 

 


 

(e) any transfer or Disposition of property or assets or issuance or sale of Equity Interests by a Restricted Subsidiary to the Borrower or by any Borrower Party to another Restricted Subsidiary; provided that (1) if the transferor of such property or assets pursuant to this clause (e) is a Loan Party and solely to the extent such transfer, Disposition, issuance or sale is outside the ordinary course of business or is not customary for a public company, then (i) the transferee thereof must either be another Loan Party (excluding however, solely during the continuance of a CarOffer Senior Lien Event, transfers or Dispositions of Non-Cash Assets to CarOffer Senior Lien Event Loan Parties from Loan Parties that are not CarOffer and/or its Subsidiaries (it being understood and agreed that, during the continuance of a CarOffer Senior Lien Event, (x) the Loan Parties shall be permitted under this sub-clause (i) to continue to make transfers and Dispositions of cash and Cash Equivalents to CarOffer Senior Lien Event Loan Parties, and (y) CarOffer Senior Lien Event Loan Parties shall be permitted under this sub-clause (i) to continue to make transfers and Dispositions of assets to other Loan Parties)), or (ii) if the transferee is to (A) a Non-Loan Party Subsidiary or (B) solely during the continuance of a CarOffer Senior Lien Event and solely with respect to transfers and Dispositions of Non-Cash Assets, a CarOffer Senior Lien Event Loan Party from a Loan Party that is not CarOffer and/or its Subsidiaries, then, solely with respect to this sub-clause (ii), (X) no Event of Default shall have occurred and be continuing at such time or would immediately result therefrom, (Y) the aggregate Fair Market Value of the property and assets subject to all such transfers and Dispositions shall not exceed (I) with respect to transfers and Dispositions by Loan Parties to Non-Loan Party Subsidiaries (and subject to the following sub-clause (II)), the greater of (x) $100,000,000 and (y) 40.0% of Four Quarter Consolidated EBITDA and (II) with respect to transfers and Dispositions of Non-Cash Assets by Loan Parties are that not CarOffer and/or its Subsidiaries to any CarOffer Senior Lien Event Loan Parties during the continuance of a CarOffer Senior Lien Event, when combined with the aggregate Fair Market Value of the property and assets subject to transfers and Dispositions to Non-Loan Party Subsidiaries in reliance on the foregoing sub-clause (I), the greater of (x) $125,000,000 and (y) 50.0% of Four Quarter Consolidated EBITDA, and (2) (i) no Loan Party shall transfer any owned Material Intellectual Property to a Non-Loan Party Subsidiary other than pursuant to a Permitted IP Transfer and License-Back (which shall not be subject to the aforementioned caps) and (ii) solely during the continuance of a CarOffer Senior Lien Event, no Loan Party (other than CarOffer and its Subsidiaries) shall transfer any owned Material Intellectual Property to any CarOffer Senior Lien Event Loan Party other than, when no Event of Default has occurred and is continuing at the time of the consummation of the Permitted IP Transfer and License-Back, pursuant to a Permitted IP Transfer and License-Back (which shall not be subject to the aforementioned caps), and (Z) such transfer or Disposition may be a Permitted IP Transfer and License-Back (which shall not be subject to the caps set forth in sub-clause (ii)(Y) above);

(f) the creation of any Lien permitted under this Agreement;

(g) any Dispositions of assets not constituting Collateral (excluding Material Intellectual Property and the Capital Stock of Restricted Subsidiaries which own Material Intellectual Property), including the Equity Interests (or Indebtedness or other securities) of Unrestricted Subsidiaries;

(h) the sale, lease, assignment, license, sublicense or sublease of inventory, equipment, accounts receivable, notes receivable or other current assets held for sale in the ordinary course of business or the conversion of accounts receivable and related assets to notes

8

 

 


 

receivable or dispositions of accounts receivable and related assets in connection with the collection or compromise thereof;

(i) the lease, assignment, license, sublicense or sublease of any real or personal property (other than Material Intellectual Property except for any non-exclusive license or sublicense of any Material Intellectual Property, which shall be permitted by this clause (i)) in the ordinary course of business;

(j) a sale, assignment or other transfer of Qualified Assets, or participations therein, and related assets (i) to a Structured Financing Subsidiary in a Qualified Structured Financing or (ii) to any other Person in a Qualified Factoring Transaction;

(k) a sale, assignment or other transfer of Qualified Assets, or participations therein, and related assets by a Structured Financing Subsidiary in a Qualified Structured Financing;

(l) any Permitted Asset Swap;

(m) (i) non-exclusive licenses, sublicenses or cross-licenses of intellectual property, other intellectual property rights or other general intangibles, (ii) Intercompany License Agreements, and (iii) exclusive licenses, sublicenses or cross-licenses of intellectual property, other intellectual property rights or other general intangibles in the ordinary course of business of the Borrower Parties;

(n) any transfer in a Sale/Leaseback Transaction of any property acquired or built after the Closing Date (other than Material Intellectual Property); provided that (i) no Event of Default has occurred and is continuing at such time or would immediately result therefrom, and (ii) such sale is for at least Fair Market Value (as determined in good faith by the Borrower on the date on which a definitive agreement for such Sale/Leaseback Transaction was entered into);

(o) the surrender or waiver of obligations of trade creditors or customers or other contract rights that were incurred in the ordinary course of business of any Borrower Party, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;

(p) Dispositions arising from foreclosures, condemnations, eminent domain, seizure, nationalization or any similar action with respect to assets, dispositions of property subject to casualty events;

(q) Dispositions of Investments (including Equity Interests) in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements or rights of first refusal between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(r) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon and excluding any Material Intellectual Property, which

9

 

 


 

Material Intellectual Property can only be transferred or Disposed of in accordance with the express terms of this Agreement relating thereto) for use in a Similar Business;

(s) the issuance of directors’ qualifying shares and shares issued to foreign nationals to the extent required by applicable law;

(t) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is purchased (or a commitment to purchase has been entered into) within ninety (90) days of such Disposition or (ii) the proceeds of such Disposition are applied within ninety (90) days of such Disposition to the purchase price of such replacement property (which replacement property is purchased (or a commitment to purchase has been entered into) within ninety (90) days of such disposition);

(u) a sale or transfer of equipment receivables, or participations therein, and related assets;

(v) any Dispositions in connection with any Permitted Tax Reorganization;

(w) (i) the Disposition of assets acquired pursuant to any Permitted Investment or other Investment permitted under Section 7.05, which assets are not used or useful to the core or principal business of the Borrower Parties or which Disposition is required by regulatory (including antitrust) authorities; and (ii) the Disposition of assets that are necessary or advisable, as determined in the good faith judgment of the Borrower, in order to obtain the approval of any Governmental Authority (including anti-trust authorities) to consummate or avoid the prohibition or other restrictions on the consummation of any Permitted Investment, any Investment permitted under Section 7.05 or acquisition;

(x) any Disposition to effect the formation of any Restricted Subsidiary that is a Divided LLC or a Divided LP and would otherwise not be prohibited hereunder; provided that if such new Restricted Subsidiary to which such Disposition is being made is not a Loan Party, such Disposition must be permitted as an Investment or a Disposition to a Non-Loan Party Subsidiary hereunder;

(y) any Disposition (x) existing on the Closing Date and listed on Schedule 7.04 or (y) made pursuant to binding commitments in effect on the Closing Date and listed on Schedule 7.04;

(z) so long as no Event of Default has occurred and is continuing at such time or would immediately result therefrom, Dispositions of Equity Interests, properties or assets of a Non-Loan Party Subsidiary so long as the aggregate Fair Market Value of all such Dispositions made in reliance on this clause (z) does not exceed the greater of (x) $62,500,000 and (y) 25.0% of Four Quarter Consolidated EBITDA; and

(aa) so long as no Event of Default has occurred and is continuing at such time or would immediately result therefrom, other sales or Dispositions so long as the aggregate Fair Market Value of all such sales and Dispositions made in reliance on this clause (aa) does not exceed the greater of (i) $62,500,000 and (ii) 25.0% of Four Quarter Consolidated EBITDA.

10

 

 


 

For the avoidance of doubt, the unwinding of Swap Contracts shall not be deemed to constitute an Asset Sale.

Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D-1, or otherwise in form and substance reasonably acceptable to the Administrative Agent.

Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(c)(iii).

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date, or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is used or may be used for determining the frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then removed from the definition of “Interest Period” pursuant to Section 3.02(d).

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, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Base Rate” means, for any day, a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate in effect as of such date plus 1/2 of 1%, (b) the Prime Lending Rate in effect on such day, and (c) the sum of Daily Simple SOFR in effect on such day plus one percent (1.00%), so long as Daily Simple SOFR is offered, ascertainable and not unlawful (or if such day is not a Business Day, the immediately preceding Business Day). Any change in the Base Rate due to a change in the Prime Lending Rate, the Federal Funds Rate, Daily Simple SOFR or any other component of the Base Rate shall be effective at the opening of business on the day such change occurs. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.02 hereof, then the Base Rate shall be the greater of clauses (a) and (b) 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.

11

 

 


 

Benchmark” means, initially, with respect to any (i) RFR Loan in any Agreed Currency, the applicable Relevant Rate for such Agreed Currency, (ii) Term Benchmark Loan, the Relevant Screen Rate for Dollars, or (iii) Alternative Currency Loan, the Relevant Screen Rate for the applicable Alternative Currency; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to any then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.02(a); provided, in each case, that no Benchmark shall be less than the Floor.

Benchmark Replacement” means, for any Agreed Currency with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be reasonably determined by the Administrative Agent, in consultation with the Borrower, for the applicable Benchmark Replacement Date:

(1) where the Benchmark is the Term SOFR Reference Rate, the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement Adjustment, if applicable;

(2) where the Benchmark is the EURIBOR Reference Rate:

(A) the sum of: (A) €STR Term RFR and (B) the related Benchmark Replacement Adjustment;

(B) the sum of: (A) €STR Daily RFR and (B) the related Benchmark Replacement Adjustment; or

(3) in all cases, including clause (1) and clause (2) above, the sum of: (A) the alternate benchmark rate that has been reasonably selected by the Administrative Agent and the Borrower after giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention, for determining a benchmark rate as a replacement to the then current Benchmark for syndicated credit facilities denominated in such Agreed Currency at such time and (B) the related Benchmark Replacement Adjustment;

provided, that if the Benchmark Replacement as so determined would be less than the Floor (which shall be calculated after increasing the Unadjusted Benchmark Replacement by any Benchmark Replacement Adjustment), the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents; provided, further that any such Benchmark Replacement shall be administratively feasible as determined by the Administrative Agent in its reasonable discretion.

Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (a) any selection or recommendation

12

 

 


 

of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time.

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters (but excluding, for the avoidance of doubt, any changes to economic terms)) that the Administrative Agent and the Borrower reasonably decide may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent and the Borrower mutually decide that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent and the Borrower reasonably determine that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent and the Borrower reasonably decide is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

Benchmark Replacement Date” means, with respect to any Benchmark, the earlier to occur of the following events with respect to the then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date reasonably determined by the Administrative Agent in consultation with the Borrower, which date shall promptly follow the date of the public statement or publication of information referenced therein.

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to the then-current Benchmark:

13

 

 


 

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the NYFRB, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified date, will not be, representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred and solely to the extent that the then-current Benchmark has not been replaced with a Benchmark Replacement, the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.02 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.02.

beneficial owner” has the meaning given to that term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, in each case as in effect on the date hereof, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act, as in effect on the date hereof), such “person” will not be deemed to have beneficial ownership of any securities that such “person” has the right to acquire or vote only upon the happening of any future event or contingency (including the passage of time) that has not yet occurred. The terms “beneficial ownership,” “beneficially owns” and “beneficially owned” have a corresponding meaning.

14

 

 


 

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

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 and subject to 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”.

BHC Act Affiliate” means an “affiliate” (as defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)).

Blocked Person” means any Person: (a) listed in the annex to, or otherwise subject to the provisions of, the Executive Order; (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; or (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Laws.

Board of Directors” means as to any Person, the board of directors, board of managers, sole member or managing member or other governing body of such Person, or if such Person is owned or managed by a single entity or has a general partner, the board of directors, board of managers, sole member or managing member or other governing body of such entity or general partner, or in each case, any duly authorized committee thereof, and the term “directors” means members of the Board of Directors.

Borrower” means, collectively, (i) the “Borrower” specified in the introductory paragraph to this Agreement and (ii) each Co-Borrower (or, as the context requires, any one of them). In the event the Borrower consummates any merger, amalgamation or consolidation in accordance with Section 7.03, the surviving Person in such merger, amalgamation or consolidation shall be deemed to be the “Borrower” for all purposes of this Agreement and the other Loan Documents.

Borrower Materials” has the meaning specified in Section 6.02.

Borrower Parties” means the collective reference to the Borrower and its Restricted Subsidiaries, and “Borrower Party” means any one of them.

Borrowing” means a Revolving Credit Borrowing.

Business Day” means any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required to be closed, or are in fact closed, for business in Pittsburgh, Pennsylvania (or, if otherwise, in lieu of Pittsburgh, Pennsylvania, the Lending Office of the Administrative Agent); provided that for purposes of any direct or indirect calculation

15

 

 


 

or determination of, or when used in connection with any interest rate settings, fundings, disbursements, settlements, payments, or other dealings with respect to any (a) Loans determined by reference to Term SOFR or Daily Simple SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day; (b) Loans denominated in Canadian Dollars, the term “Business Day” means any such day on which banks are open for business in Canada; (c) Loans denominated in Euros, the term “Business Day” means any such day that is also a TARGET Day, (d) Loans denominated in Pounds Sterling, the term “Business Day” means any such day that is also an RFR Business Day, and (e) in relation to Loans denominated in an Alternative Currency other than Canadian Dollars, Euros and Pounds Sterling, any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

Canadian Dollars” means freely transferable lawful money of Canada (expressed in Canadian dollars).

Capital Stock” means:

(a) in the case of a corporation or company, corporate stock or share capital;

(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs” in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock).

Capitalized Lease Obligation” means at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.

Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.

CarOffer” means CarOffer, LLC, a Delaware limited liability company.

CarOffer Senior Lien Event” means at any time that (i) CarOffer and/or any of its Subsidiaries is a Loan Party and (ii) CarOffer or any of its Subsidiaries has incurred Indebtedness as permitted under Section 7.01(b) which is secured by a Lien on the Collateral owned by CarOffer and/or its Subsidiaries on a basis senior to the Initial Revolving Tranche, but, in each case, solely

16

 

 


 

with respect to such Persons that are Loan Parties that provide such senior Lien (such Persons, the “CarOffer Senior Lien Event Loan Parties”) and not any of the other Persons of CarOffer and its Subsidiaries (which, for the avoidance of doubt, shall not be CarOffer Senior Lien Event Loan Parties).

CarOffer Senior Lien Event Loan Parties” has the meaning set forth in the definition of “CarOffer Senior Lien Event”.

Cash-Capped Incremental Facility” has the meaning specified in Section 2.14(a)(w).

Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent or L/C Issuer (as applicable) and the Revolving Credit Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash, Cash Equivalents (if reasonably acceptable to the Administrative Agent and the applicable L/C Issuer) or deposit account balances (in the case of L/C Obligations in the respective currency or currencies in which the applicable L/C Obligations are denominated unless otherwise agreed by the Administrative Agent or L/C Issuer benefiting from such collateral) or, if the Administrative Agent or L/C Issuer benefiting from such collateral shall agree in its sole discretion, other credit support (including by backstop with a letter of credit satisfactory to the applicable L/C Issuer or by being deemed reissued under another agreement acceptable to the applicable L/C Issuer), in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer (which documents are hereby consented to by the Lenders).

Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Consideration” means the aggregate cash consideration paid to sellers in respect of a Permitted Acquisition, excluding (a) any consideration or payment funded with the proceeds from the issuance or sale of Equity Interests of the Borrower or any direct or indirect parent of the Borrower (to the extent directly or indirectly contributed to the Borrower) which is applied to such Permitted Acquisition and (b) any fees, costs or expenses incurred (or taxes paid, payable or incurred) in connection with such Permitted Acquisition; provided that if any cash on the balance sheet of a Person subject to a purchase or other acquisition that is not a U.S. Person is paid or distributed to its direct or indirect shareholders, in part, as acquisition consideration in connection therewith, then the aggregate cash consideration with respect to such purchase shall be reduced by such cash amount distributed or paid.

Cash Equivalents” means:

(1) Dollars, Alternative Currencies, the national currency of any Participating Member State of the European Union (as it is constituted on the Closing Date), and, with respect to any Non-U.S. Subsidiaries, other currencies (including, without limitation, digital currencies) held by such Non-U.S. Subsidiary in the ordinary course of business;

(2) securities issued or directly guaranteed or insured by the government of the United States, the United Kingdom or any Participating Member

17

 

 


 

State of the European Union (as it is constituted on the Closing Date) or any agency or instrumentality thereof in each case with maturities not exceeding two years from the date of acquisition;

(3) money market deposits, certificates of deposit, time deposits and eurodollar time deposits with (i) maturities of two years or less from the date of acquisition, bankers’ acceptances, in each case with maturities not exceeding two years, and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $250,000,000 in the case of domestic banks or $100,000,000 (or the equivalent Dollar Amount) in the case of foreign banks or (ii) financial institution that is a member of the Federal Reserve System (or organized in any foreign country recognized by the United States) and whose senior unsecured debt is rated at least P-2, A-2 or F2, short-term, or A2, A or A, long-term, by Moody’s, S&P or Fitch;

(4) repurchase obligations for underlying securities of the types described in clauses (2) and (3) above and clause (6) below entered into with any financial institution or securities dealers of recognized national standing meeting the qualifications specified in clause (3) above;

(5) commercial paper or variable or fixed rate notes issued by a corporation or other Person (other than an Affiliate of the Borrower) rated at least “A-2”, “P-2” or “F2” or the equivalent thereof by Moody’s, S&P or Fitch (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each case maturing within two years after the date of acquisition;

(6) readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof having an Investment Grade Rating from Moody’s, S&P or Fitch (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition;

(7) Indebtedness issued by Persons with a rating of “A” or higher from S&P, “A-2” or higher from Moody’s or “A” or higher from Fitch (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition, and marketable short-term money market and similar securities having a rating of at least “A-2”, “P-2” or “F-2” from S&P, Moody’s or Fitch (or reasonably equivalent ratings of another internationally recognized ratings agency);

(8) investment funds investing at least 95.0% of their assets in investments of the types described in clauses (1) through (7) above and (9) and (10) below;

(9) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA (or the equivalent

18

 

 


 

thereof) or better by S&P, Aaa3 (or the equivalent thereof) or better by Moody’s or AAA (or the equivalent thereof) or better by Fitch (or reasonably equivalent ratings of another internationally recognized ratings agency); and

(10) in the case of investments by any Non-U.S. Subsidiary or investments made in a country outside the United States of America, other investments of comparable tenor and credit quality to those described in the foregoing clauses (1) through (9) customarily utilized in the countries where such Non-U.S. Subsidiary is located or in which such investment is made.

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above; provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

Cash Management Agreement” means any agreement or arrangement to provide Cash Management Services to any Borrower Party.

Cash Management Bank” means any Person that (a) (i) is at the time it enters into a Cash Management Agreement, an Arranger, Lender or an Agent or an Affiliate of an Arranger, Lender or an Agent, (ii) in the case of any Cash Management Agreement in effect on or prior to the Closing Date, is, as of the Closing Date or within 45 days thereafter, an Arranger, Lender or an Agent or an Affiliate of an Arranger, Lender or an Agent and a party to a Cash Management Agreement or (iii) within 45 days after the time it enters into the applicable Cash Management Agreement, becomes an Arranger, Lender or an Affiliate of an Arranger, Lender or an Agent and (b) has provided written notice to the Administrative Agent, which has been acknowledged by the Borrower in writing, of (i) the existence of the Cash Management Agreement (and a description of the Cash Management Services provided thereunder) and (ii) the maximum amount of, and the methodology to be used by such parties in determining, the obligations under such Cash Management Agreement from time to time, which notice shall be substantially in the form of Exhibit N or otherwise reasonably satisfactory to the Borrower and the Administrative Agent.

Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an overnight draft facility that is not in default); automated clearing house transactions, treasury and/or cash management services, including, without limitation, treasury, depository, overdraft, credit, purchasing or debit card, non-card e-payable services, electronic funds transfer, treasury management services (including controlled disbursement services, overdraft automatic clearing house fund transfer services, return items and interstate depository network services), other demand deposit or operating account relationships, supply chain financial services, foreign exchange facilities (including spot foreign exchange facilities), and merchant services.

Casualty Event” means any event that gives rise to the receipt by any Borrower Party of any casualty insurance proceeds or condemnation awards or that gives rise to a taking by a Governmental Authority, in each case, in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace, restore or repair, or compensate for the loss of, such equipment, fixed assets or real property.

19

 

 


 

Cause of Action” means any action, claim, cause of action, controversy, demand, right, action, lien, indemnity, interest, guaranty, suit, obligation, liability, damage, judgment, account, defense, offset, power, privilege, and license of any kind or character whatsoever, whether known, unknown, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising before, on, or after the Closing Date, in contract or in tort, in law (whether local, state, or federal U.S. or non-U.S. law) or in equity, or pursuant to any other theory of local, state, or federal U.S. or non-U.S. law. For the avoidance of doubt, “Cause of Action” includes: (a) any right of setoff, counterclaim, or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (b) any claim based on or relating to, or in any manner arising from, in whole or in part, tort, breach of contract, breach of fiduciary duty, fraudulent transfer or fraudulent conveyance or voidable transaction law, violation of local, state, or federal or non-U.S. law or breach of any duty imposed by law or in equity, including securities laws, negligence, and gross negligence; (c) any claim pursuant to section 362 or chapter 5 of the title 11 of the United States Code or similar local, state, or federal U.S. or non-U.S. law; (d) any claim or defense including fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of title 11 of the United States Code; (e) any state or foreign law pertaining to actual or constructive fraudulent transfer, fraudulent conveyance, or similar claim; and (f) any “lender liability” or equitable subordination claims or defenses.

CDOR Lookback Day” has the meaning specified in the definition of “CDOR Rate”.

CDOR Rate” means, with respect to any Alternative Currency Borrowing denominated in Canadian Dollars and for any Interest Period, the interest rate per annum (the resulting amount rounded upwards, at the Administrative Agent’s reasonable discretion, to the nearest 1/100th of 1%) (the “CDOR Reference Rate”) equal to the arithmetic average rate applicable to Canadian Dollar bankers’ acceptances for the applicable Interest Period appearing on the Bloomberg page BTMM CA, rounded upwards, at the Administrative Agent’s discretion, to the nearest 1/100 of 1% per annum, at approximately 11:00 a.m. Eastern time, two (2) Eurocurrency Banking Days prior to the commencement of such Interest Period; provided that if by such time such rate does not appear on the Bloomberg page BTMM CA, the CDOR Reference Rate on such day shall be the rate for such period applicable to Canadian Dollar bankers’ acceptances quoted by a bank listed in Schedule I of the Bank Act (Canada), as reasonably selected by the Administrative Agent, as of 11:00 a.m. Eastern time on such day or, if such day is not a Business Day, then on the immediately preceding Business Day; provided further that any CDOR Reference Rate so determined based on the immediately preceding Business Day shall be utilized for purposes of calculation of the CDOR Rate for no more than three (3) consecutive Business Days (collectively, the “CDOR Lookback Day”).

CDOR Reference Rate” has the meaning specified in the definition of “CDOR Rate”.

CG Largest Shareholder Related Parties” means, collectively, the largest holder of Voting Stock in the Borrower as of the Closing Date and any other Person which directly or indirectly is Controlled by such holder.

A “Change of Control” will be deemed to occur if at any time any person or “group” (within the meaning of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the date

20

 

 


 

hereof, but excluding any employee benefit plan and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than one or more CG Largest Shareholder Related Parties, acquires “beneficial ownership” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of both (i) more than 50.0% of the Voting Stock (measured by reference to ordinary voting power) of the Borrower (determined on a fully diluted basis) and (ii) more than the percentage of Voting Stock (measured by reference to ordinary voting power) of the Borrower that is at the time beneficially owned, directly or indirectly, by the CG Largest Shareholder Related Parties, taken together. Notwithstanding the preceding or any provision of Rule 13d-3 of the Exchange Act (or any successor provision), (a) a Person or group shall not be deemed to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement and (b) a Change of Control will be deemed to not have occurred at any time if the CG Largest Shareholder Related Parties have, at such time, directly or indirectly, the right or the ability, by voting power, contract or otherwise, to elect, or nominate or designate for election, at least a majority of the seats available for occupancy on the board of directors of the Borrower.

Closing Date” means September 26, 2022.

Co-Borrower Joinder Agreement” means a joinder agreement, in substantially the form of Exhibit K hereto or otherwise in a form reasonably acceptable to the Administrative Agent, pursuant to which a Co-Borrower agrees to become an obligor in respect of Borrowings under this Agreement.

Co-Borrowers” means Wholly Owned Restricted Subsidiaries organized in any Applicable Jurisdiction from time to time designated by the Borrower to the Administrative Agent as “borrowers” with respect to Borrowings in accordance with Section 11.01, and “Co-Borrower” means any one of them.

Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.

Collateral” means all of the “Collateral” (or similar term) referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.

Collateral Agent” means PNC, acting through such of its Affiliates or branches as it may designate, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent permitted by the terms hereof.

Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreement, the Mortgages (if any), collateral assignments, Security Agreement Supplements, Intellectual Property Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent pursuant to Section 6.12, Section 6.14 or Section 6.16, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties as security for the Secured Obligations.

21

 

 


 

Commitment” means a Revolving Credit Commitment.

Committed Loan Notice” means a notice of (a) Borrowing, (b) a conversion of Loans from one Type to another or (c) a continuation of SOFR Loans or Alternative Currency Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form reasonably approved by the Administrative Agent and the Borrower.

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.

Company Competitor” means any Person that competes with the business of the Borrower and its respective direct and indirect Subsidiaries from time to time.

Compliance Certificate” means a certificate substantially in the form of Exhibit C or such other form as may be agreed between the Borrower and the Administrative Agent.

Consolidated Cash Interest Expense” means, with respect to any Person for any period, without duplication, the cash interest expense (including that attributable to any Capitalized Lease Obligation), net of cash interest income, with respect to Consolidated Funded Indebtedness of such Person and its Restricted Subsidiaries for such period, other than non-recourse Indebtedness, including commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net cash costs under hedging agreements (other than in connection with the early termination thereof); excluding, in each case:

(i) deferred financing costs, debt issuance costs, commissions, fees and expenses, and in each case, the amortization thereof, and any other amounts of non-cash interest (including as a result of the effects of acquisition method accounting or pushdown accounting),

(ii) interest expense attributable to the movement of the mark-to-market valuation of obligations under Swap Obligations or other derivative instruments,

(iii) costs associated with incurring or terminating Swap Contracts and cash costs associated with breakage in respect of hedging agreements for interest rates,

(iv) commissions, discounts, yield, make-whole premium and other fees and charges (including any interest expense) incurred in connection with any non-recourse Indebtedness and any Qualified Structured Financings,

(v) “additional interest” owing pursuant to a registration rights agreement with respect to any securities,

(vi) any payments with respect to make-whole premiums or other breakage costs of any Indebtedness, including any Indebtedness issued in connection with the Transactions,

(vii) penalties and interest relating to Taxes,

22

 

 


 

(viii) accretion or accrual of discounted liabilities not constituting Indebtedness,

(ix) interest expense attributable to the Borrower resulting from push-down accounting,

(x) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting,

(xi) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto in connection with the Transactions, any acquisition or Investment, and

(xii) annual agency fees paid to any trustees, administrative agents and collateral agents with respect to any secured or unsecured loans, debt facilities, debentures, bonds, commercial paper facilities or other forms of Indebtedness (including any security or collateral trust arrangements related thereto) and fees payable to rating agencies with regards to Indebtedness;

provided that (a) when determining Consolidated Cash Interest Expense in respect of any four-quarter period ending prior to the first anniversary of the Closing Date, Consolidated Cash Interest Expense will be calculated by multiplying the aggregate Consolidated Cash Interest Expense accrued since the Closing Date by 365 and then dividing such product by the number of days from and including the Closing Date to and including the last day of such period and (b) in the case of any Person that became a Restricted Subsidiary of such Person after the commencement of such four-quarter period, the interest expense of such Person paid in cash prior to the date on which it became a Restricted Subsidiary of such Person will be disregarded.

For purposes of this definition, interest on a Capitalized Lease Obligation will be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees, and expenses, capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and incentive payments, conversion costs, and contract acquisition costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

Consolidated EBITDA” means, with respect to any Person and its Restricted Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of such Person for such period:

(1) increased, in each case (other than with respect to clauses (k), (q), (r), (s)(B) and (u) below) to the extent deducted and not added back or

23

 

 


 

excluded in calculating such Consolidated Net Income (and without duplication), by:

(a) provision for taxes based on income, profits or capital, including federal, state, provincial, territorial, franchise, excise, property and similar taxes and foreign withholding taxes paid or accrued, including giving effect to any penalties and interest with respect thereto, and state taxes in lieu of business fees (including business license fees) and payroll tax credits, income tax credits and similar credits and including an amount equal to the amount of tax distributions actually made to the holders of Equity Interests of such Person or its Restricted Subsidiaries or any direct or indirect parent of such Person or its Restricted Subsidiaries in respect of such period (in each case, to the extent attributable to the operations of such Person and its Restricted Subsidiaries), which shall be included as though such amounts had been paid as income taxes directly by such Person or its Restricted Subsidiaries; plus

(b) Consolidated Interest Expense; plus

(c) Consolidated Depreciation and Amortization Expense; plus

(d) any fees related to letters of credit (including any Letters of Credit); plus

(e) the amount of management, board of directors, monitoring, consulting, transaction and advisory fees (including termination fees) and related indemnities, charges and expenses paid or accrued to or on behalf of any direct or indirect parent or equityholders of the Borrower or any of the Permitted Holders, in each case, to the extent permitted by Section 6.19 or any other provision of this Agreement or any other Loan Document; plus

(f) earn-out obligations incurred in connection with any acquisition or other Investment and paid or accrued during the applicable period, including any mark to market adjustments; plus

(g) all payments, charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of equity interests held by any future, present or former director, officer, employee, manager, consultant or independent contractor of any Borrower Party and all losses, charges and expenses related to payments made to holders of options, cash-settled appreciation rights, awards under any successor plans of the Borrower’s option or equity plans or other derivative equity interests in the common equity of such Person or any direct or indirect parent of the Borrower in connection with, or as a result of, any distribution being made to equityholders of such Person or any of its direct or indirect parents, which payments are being made to compensate such holders as though they were equityholders at the time of, and entitled to share in, such distribution; plus

24

 

 


 

(h) all non-cash losses, charges and expenses, including any write-offs or write-downs (including any non-cash compensation, non-cash translation loss and non-cash expense relating to the vesting of warrants); provided that if any such non-cash loss, charge or expense represents an accrual or reserve for potential cash items in any future four-fiscal quarter period, (i) such Person may determine not to addback such non-cash loss, charge or expense in the period for which Consolidated EBITDA is being calculated and (ii) to the extent such Person does decide to addback such non-cash loss, charge or expense, the cash payment in respect thereof in such future four-fiscal quarter period will be subtracted from Consolidated EBITDA for such future four-fiscal quarter period; plus

(i) all costs and expenses in connection with pre-opening and opening and closure and/or consolidation of facilities; plus

(j) expenses, charges, costs, accruals, reserves and losses related to operating expense reductions, synergies, restructurings, integration, platform consolidations and migrations, transition, insourcing initiatives, operating improvements, cost savings initiatives and other business optimization initiatives, actions or events (including, without limitation, those related to the start-up, pre-opening, opening, closure, reconfiguration and/or consolidation of distribution centers, operations, offices and facilities (including future lease commitments, lease breakage and vacant facilities)) and relocation and reallocation of employees, equipment and other assets and resources; new product design, development and introductions (including intellectual property development); strategic initiatives; project start-up costs (including entry into new market/channels, new service offerings, new platforms or new contracts); curtailments or modifications to pension and post-retirement employee benefit plans (including excess pension charges and any settlement of pension liabilities); exiting, winding down or termination of lines of business; settlement costs; costs related to customer disputes, distribution networks or sales channels; the implementation, replacement, development or upgrade of operational, reporting and information technology systems and technology initiatives; carve-out related items and contract termination, retention, recruiting, severance, signing, consulting and transition services arrangements; systems establishment costs; systems, facilities or equipment conversion costs; expenses attributable to the implementation of costs savings initiatives; costs associated with tax projects/audits, expenses relating to any decommissioning or reconfiguration of fixed assets for alternative uses and costs consisting of professional consulting or other fees relating to any of the foregoing; provided that the aggregate amount added back to Consolidated Net Income pursuant to this clause (j) and clause (k) below in calculating Consolidated EBITDA for any Test Period shall not exceed the greater of $62,500,000 and 25% of Consolidated EBITDA for such period (calculated after giving effect to all addbacks and adjustments); plus

(k) Pro Forma Cost Savings; provided that the aggregate amount added back to Consolidated Net Income pursuant to clause (j)

25

 

 


 

above and this clause (k) in calculating Consolidated EBITDA for any Test Period shall not exceed the greater of $62,500,000 and 25% of Consolidated EBITDA for such period (calculated after giving effect to all addbacks and adjustments); plus

(l) [reserved]; plus

(m) the amount of any (i) commissions, discounts, yield, make-whole premium and other fees and charges (including any interest expense) related to any Qualified Structured Financing and (ii) losses on dispositions of motor vehicles, accounts receivable, royalty and other similar rights to payment, or participations therein, or related assets incurred in connection with a Qualified Structured Financing; plus

(n) with respect to any joint venture of such Person or any Restricted Subsidiary thereof that is not a Restricted Subsidiary, an amount equal to (i) such Person’s or such Restricted Subsidiary’s proportionate share of the net income of such joint venture that is excluded from Consolidated Net Income as a result of clause (h)(i) of the definition of Consolidated Net Income and (ii) the proportion of those items described in clauses (a), (b) and (c) above relating to such joint venture corresponding to such Person’s and the Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) solely to the extent Consolidated Net Income was reduced thereby; plus

(o) [reserved]; plus

(p) [reserved]; plus

(q) at the option of the Borrower, any addbacks and adjustments (including pro forma adjustments) of the type (i) reflected in any quality of earnings report obtained by the Borrower and made available to the Administrative Agent and prepared by an Independent Financial Advisor (including any “big four” accounting firm, nationally recognized consulting firm or any other consulting firm reasonably acceptable to the Administrative Agent) (in each case, without regard to time or amounts), (ii) consistent with or determined on a basis consistent with Regulation S-X and (iii) otherwise approved by the Administrative Agent in writing; plus

(r) the net amount (to the extent positive), if any, by which the consolidated deferred revenues for such period increased, as measured as of the day before the first day of such period and such balance as of the last day of such period (without deduction for the new amount, if any, by which deferred revenues decreased); provided that such deferred revenues shall be calculated (i) without giving effect to the impact of purchasing accounting, (ii) without giving effect to any accounting related changes, (iii) giving effect to any permitted acquisition and intellectual property acquisition or other permitted Investment

26

 

 


 

consummated during such period and (iv) giving effect to any changes in billing policy; plus

(s) (A) all fees, costs and expenses incurred due to the implementation of ASC 606 or any rule under applicable accounting standards and (B) all non-cash losses, charges and accruals (to the extent deducted in determining Consolidated Net Income) and transitional adjustments resulting from the application of ASC 606 or any similar rule under applicable accounting standards; plus

(t) expenses, charges, costs, accruals, reserves and losses related to Capitalized Lease Obligations and financing leases to the extent the corresponding liability is included as Consolidated Funded Indebtedness; plus

(u) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to the below for any previous period and not added back; plus

(v) any charges, expenses or losses directly related to litigation; plus

(w) costs of surety bonds, performance bonds or other similar instruments; plus

(x) costs or expenses, including related taxes, incurred pursuant to any equity incentive plan, management equity plan or stock option or phantom equity plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of such Person or net cash proceeds of an issuance of Equity Interests of such Person (other than Disqualified Stock); and

(2) increased (with respect to losses, deductions and costs and without duplication and to the extent decreasing such Consolidated Net Income for such period) or decreased (with respect to gains or income and without duplication and to the extent increasing such Consolidated Net Income for such period) by (i) non-cash gains or income, excluding any non-cash gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that were deducted (and not added back) in the calculation of Consolidated EBITDA for any prior period ending after the Closing Date and (ii) the amount of any loss, deduction or cost attributable to minority equity interest of third parties in any Restricted Subsidiary that is not a Wholly Owned Subsidiary;

(3) increased (with respect to losses) or decreased (with respect to gains) by, without duplication, any net realized or unrealized gains and

27

 

 


 

losses relating to (i) amounts denominated in foreign currencies resulting from the application of FASB ASC 830 (including net realized gains and losses from exchange rate fluctuations on intercompany balances and balance sheet items, net of realized gains or losses from related Swap Contracts (entered into in the ordinary course of business or consistent with past practice)) or (ii) any other amounts denominated in or otherwise trued-up to provide similar accounting as if it were denominated in foreign currencies;

(4) increased (with respect to losses) or decreased (with respect to gains) by, without duplication, any gain or loss relating to Swap Contracts (excluding Swap Contracts entered into in the ordinary course of business or consistent with past practice);

(5) increased (with respect to losses) or decreased (with respect to gains) by any net loss or reduction or net gain or increase in revenue included in Consolidated Net Income attributable to changes in accounting methodology or principles used by any Person, property, business or asset acquired in connection with an Investment permitted hereunder from the methodology or principles used by such Person, property, business or asset immediately prior to such Investment to the methodology used by the Loan Parties following such acquisition or Investment; and

(6) decreased (without duplication and to the extent increasing such Consolidated Net Income for such period) by any non-cash gains, charges or adjustments resulting from the application of ASC 606;

provided, that the Borrower may, in its sole discretion, elect to not make any adjustment for any item pursuant to the foregoing clauses (1) through (6) above if any such item individually is equal to or less than $1,000,000 for any item in any adjustment clause in this definition and so long as the aggregate amount of items which are not adjusted for as permitted under this proviso, together with the aggregate amount of items not adjusted for in the definition of Consolidated Net Income pursuant to the proviso immediately following clause (y) in such definition of Consolidated Net Income, does not exceed $10,000,000 in any twelve (12) month period.

Notwithstanding the foregoing, Consolidated EBITDA (a) for the fiscal quarter ended September 30, 2021, shall be deemed to be $62,544,000, (b) for the fiscal quarter ended December 31, 2021, shall be deemed to be $69,959,000, (c) for the fiscal quarter ended March 31, 2022, shall be deemed to be $57,950,000 and (d) for the fiscal quarter ended June 30, 2022, shall be deemed to be $53,968,000, in each case, as may, at the Borrower’s sole option, be subject to addbacks and adjustments (without duplication) pursuant to clauses (1) through (6) above upon the occurrence of a “pro forma” event or initiative action that occurs before, on or after the Closing Date and which is deemed to have occurred as of the first day of a period that includes any of the foregoing fiscal quarters.

28

 

 


 

Consolidated Funded Indebtedness” of a Person means (1) all Indebtedness of the type described in clause (a)(i) of the definition of “Indebtedness”, clause (a)(ii) of the definition of “Indebtedness” (but, in each case, excluding surety bonds, performance bonds or other similar instruments), clause (a)(iv) of the definition of “Indebtedness” (including Indebtedness of the type described in clause (d) of the definition of “Permitted Debt”), and clause (b) of the definition of “Indebtedness” (in respect of Indebtedness of the type described in clauses (a)(i) and (a)(ii)) (but, in each case, excluding Indebtedness constituting surety bonds, performance bonds or other similar instruments) of such Person and its Restricted Subsidiaries on a consolidated basis, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but, in each case, (x) excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions or any acquisition and (y) any Indebtedness that is issued at a discount to its initial principal amount shall be calculated based on the entire stated principal amount thereof, without giving effect to any discounts or upfront payments), excluding, in each case of the foregoing in this clause (1), (I) obligations in respect of letters of credit (including Letters of Credit), bank guarantees, bankers’ acceptances and guarantees on first demand, in each case, except to the extent of amounts thereunder that have not been reimbursed within three (3) Business Days after the due date for payment thereof, and (II) Indebtedness solely among the Borrower Parties, less (2) the amount of Adjusted Cash and unrestricted (other than restrictions regarding (a) Liens in favor of the Secured Parties and (b) bankers’ Liens) Cash Equivalents of the Borrower Parties as of such date (which may also include such cash and Cash Equivalents securing the Obligations and/or other Indebtedness secured by a pari passu or junior Lien on the Collateral), in each case, as of such date. For the avoidance of doubt, (I) it is understood that obligations (a) under Swap Contracts, Cash Management Services, Structured Financings (including, for the avoidance of doubt, Qualified Structured Financing Obligations incurred by any Person in connection therewith), or Factoring Transactions (including, for the avoidance of doubt, Qualified Structured Financing Obligations incurred by any Person in connection therewith) or (b) owed by Unrestricted Subsidiaries, do not constitute Consolidated Funded Indebtedness and (II) except as otherwise expressly set forth in (and required by) the penultimate sentence of Section 1.10 of this Agreement, Consolidated Funded Indebtedness shall not count any undrawn amounts under the Revolving Credit Commitments or under any other debt commitments of any type.

Consolidated Funded Secured Indebtedness” means Consolidated Funded Indebtedness of the Borrower Parties that is secured by a Lien.

Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of:

(a) the aggregate interest expense of such Person and its Restricted Subsidiaries for such period, calculated on a consolidated basis in accordance with GAAP, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including pay in kind interest payments, amortization of original issue discount, the interest component of Capitalized Lease Obligations and net payments and receipts (if any) pursuant to interest rate Swap Contracts (other than in connection with the early termination thereof) but excluding any non-cash interest expense attributable to the movement in the mark-to-market valuation of Indebtedness, Swap Contracts or other derivative instruments, all amortization and write-offs of deferred financing fees, debt issuance costs, commissions, discounts, fees and expenses and expensing of

29

 

 


 

any bridge, commitment or other financing fees, costs of surety bonds, charges owed with respect to letters of credit, bankers’ acceptances or similar facilities, all discounts, commissions, yield, make-whole premium, fees and other charges associated with any Structured Financing or Factoring Transaction, and any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting); plus

(b) consolidated capitalized interest of the referent Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

(c) interest income of the referent Person and its Restricted Subsidiaries for such period;

provided that (a) when determining Consolidated Interest Expense in respect of any four-quarter period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense will be calculated by multiplying the aggregate Consolidated Interest Expense accrued since the Closing Date by 365 and then dividing such product by the number of days from and including the Closing Date to and including the last day of such period and (b) in the case of any Person that became a Restricted Subsidiary of such Person after the commencement of such four-quarter period, the interest expense of such Person paid in cash prior to the date on which it became a Restricted Subsidiary of such Person (other than any interest expense that would otherwise be included in “Consolidated Interest Expense” on a Pro Forma Basis) will be disregarded.

For purposes of this definition, interest on Capitalized Lease Obligations will be deemed to accrue at the interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligations in accordance with GAAP.

Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the after-tax net income (or loss) of such Person and its Restricted Subsidiaries for such period, calculated on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that (without duplication):

(a) all net after-tax extraordinary, nonrecurring, infrequent, exceptional or unusual gains, losses, income, expenses, charges, costs, accruals and reserves (including any of the foregoing related to any single or one-time event), in each case, as determined in good faith by such Person, will be excluded;

(b) all (i) losses, charges, costs and expenses relating to the Transactions, (ii) transaction fees, costs and expenses, change in control payments, or retention or transaction-related bonuses or payments incurred in connection with any contemplated Equity Issuances, investments, acquisitions (including with respect to the acquisition of additional Capital Stock in CarOffer), dispositions, recapitalizations, mergers, amalgamations, option buyouts and the Incurrence, modification or repayment of Indebtedness permitted to be Incurred under this Agreement (including any Refinancing Indebtedness in respect thereof) or any amendments, forbearance, waivers or other modifications under the agreements relating to such Indebtedness or similar transactions (in each case, whether or not consummated), and (iii) without duplication of any of the foregoing, non-operating or non-recurring professional fees, costs and expenses for such period will be excluded;

30

 

 


 

(c) all net after-tax income, loss, expense or charge from abandoned, closed or discontinued operations and any net after-tax gain or loss on the disposal of abandoned, closed or discontinued operations (and all related expenses) other than in the ordinary course of business (as determined in good faith by such Person) will be excluded;

(d) all net after-tax gain, loss, expense or charge attributable to business dispositions and asset dispositions, including the sale or other disposition of any Equity Interests of any Person, other than in the ordinary course of business (as determined in good faith by such Person), will be excluded;

(e) all net after-tax income, loss, expense or charge attributable to the early extinguishment, conversion or cancellation of Indebtedness, Swap Contracts or other derivative instruments (including deferred financing costs written off and premiums paid) will be excluded;

(f) all non-cash gains, losses, expenses or charges attributable to the movement in the mark-to-market valuation of Indebtedness, Swap Contracts or other derivative instruments will be excluded;

(g) any realized or unrealized currency translation or foreign currency transaction gains and losses related to changes in currency exchange rates or exchanging currency for other currency (including, without limitation, remeasurements of Indebtedness and any net loss or gain resulting from (i) Swap Contracts for currency exchange risk and (ii) intercompany Indebtedness), will be excluded;

(h) (i) the net income for such period of any Person that is not the referent Person or a Restricted Subsidiary of the referent Person or that is accounted for by the equity method of accounting, will be included only to the extent of the amount of dividends or distributions or other payments that are paid in or converted into cash or that, as reasonably determined by a responsible financial or accounting officer of the referent Person or a Restricted Subsidiary of the referent Person, could have been paid in or converted into (subject, in the case of a dividend or other distribution or return on investment to a Restricted Subsidiary, to the limitations contained in clause (v) below) cash, with respect to such equity ownership to the referent Person or a Restricted Subsidiary thereof in respect of such period; and (ii) without duplication, the net income for such period will include any ordinary course dividends or distributions or other payments paid in cash (or converted into cash) with respect to such equity ownership received from any such Person during such period in excess of the amounts included in subclause (i) above;

(i) the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies will be excluded;

(j) the effects of purchase accounting, fair value accounting or recapitalization accounting adjustments (including the effects of such adjustments pushed down to the referent Person and its Restricted Subsidiaries) resulting from the application of purchase accounting, fair value accounting or recapitalization accounting, including in relation to any acquisition (including with respect to the acquisition of additional Capital Stock in CarOffer) consummated before or after the Closing Date (including in the inventory, property and equipment, software, goodwill,

31

 

 


 

intangible assets, in-process research and development, deferred revenue and debt line items), and the amortization, write-down or write-off of any amounts thereof, net of taxes, will be excluded;

(k) all non-cash impairment charges and asset write-ups, write-downs and write-offs, in each case pursuant to GAAP, and the amortization of intangibles arising from the application of GAAP will be excluded;

(l) all non-cash expenses realized in connection with or resulting from equity or equity-linked compensation plans, employee benefit plans or agreements or post-employment benefit plans or agreements, or grants or sales of stock, stock appreciation, awards under any successor plans of the Borrower’s option or equity plans or similar rights, stock options, restricted stock, preferred stock, stock appreciation or other similar rights will be excluded;

(m) any costs or expenses incurred in connection with the payment of dividend equivalent rights to holders of equity-based incentive awards pursuant to any management equity plan, stock option plan or any other management or employee benefit plan or agreement or post-employment benefit plan or agreement will be excluded;

(n) accruals and reserves for liabilities or expenses that are established or adjusted as a result of the Transactions within 24 months after the Closing Date will be excluded;

(o) all amortization and write-offs of deferred financing fees, debt issuance costs, commissions, fees and expenses, costs of surety bonds, charges owed with respect to letters of credit, bankers’ acceptances or similar facilities, and expensing of any bridge, commitment or other financing fees (including in connection with a transaction undertaken but not completed), will be excluded;

(p) all discounts, commissions, yield, make-whole premiums, fees and other charges (including interest expense) associated with any Qualified Structured Financing or Factoring Transaction will be excluded;

(q) (i) the non-cash portion of “straight-line” rent expense will be excluded and (ii) the cash portion of “straight-line” rent expense that exceeds the amount expensed in respect of such rent expense will be included;

(r) expenses and lost profits with respect to liability or casualty events or business interruption will be disregarded to the extent covered by insurance and (x) actually reimbursed or otherwise paid to the Borrower or a Restricted Subsidiary or (y) so long as such amount for any calculation period is reasonably expected to be received by the Borrower or such Restricted Subsidiary in a subsequent calculation period but only to the extent that such amount is in fact reimbursed within 365 days of the date on which such liability was discovered or such casualty event or business interruption occurred (with a deduction for any amounts so added back that are not reimbursed within such 365-day period); provided that any proceeds of such reimbursement when received will be excluded from the calculation of Consolidated Net Income to the extent the expense or lost profit reimbursed was previously disregarded pursuant to this clause (r);

(s) losses, charges and expenses that are covered by indemnification or other reimbursement provisions will be excluded to the extent actually reimbursed, or, so long as such

32

 

 


 

Person has made a determination that a reasonable basis exists for indemnification or reimbursement, but only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days);

(t) non-cash charges or income relating to increases or decreases of deferred tax asset valuation allowances will be excluded;

(u) any after-tax cash dividends or returns of capital from Investments (such return of capital not reducing the ownership interest in the underlying Investment), in each case received during such period, to the extent not otherwise included in Consolidated Net Income for that period or any prior period subsequent to the Closing Date will be included;

(v) solely for the purpose of determining the amount available for Restricted Payments under clause (c) of the first paragraph of Section 7.05, and without duplication of provisions under clause (c) of the first paragraph of Section 7.05 with respect to cash dividends or returns on Investments, the net income (or loss) for such period of any Restricted Subsidiary (other than the Borrower or a Guarantor) will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of such Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to such Person or any of its Restricted Subsidiaries in respect of such period, to the extent not already included therein (subject, in the case of a dividend to another Restricted Subsidiary (other than a Guarantor), to the limitation contained in this clause (v));

(w) any Public Company Costs will be excluded;

(x) any (i) one-time non-cash compensation charges, (ii) the costs and expenses related to employment of terminated employees, or (iii) costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights of officers, directors and employees, in each case of such Person or any of its Restricted Subsidiaries, shall be excluded; and

(y) any non-cash interest expense and non-cash interest income, in each case to the extent there is no associated cash disbursement or receipt, as the case may be, before the Latest Maturity Date, shall be excluded;

provided that the Borrower may, in its sole discretion, elect to not make any adjustment for any item pursuant to clauses (a) through (y) above if any such item individually is equal to or less than $1,000,000 for any item in any adjustment clause in this definition and so long as the aggregate amount of items which are not adjusted for as permitted under this proviso, together with the aggregate amount of items not adjusted for in the definition of Consolidated

33

 

 


 

EBITDA pursuant to the proviso immediately following clause (6) in such definition of Consolidated EBITDA, does not exceed $10,000,000 in any twelve (12) month period.

For the purpose of Section 7.05 only, there shall be excluded from Consolidated Net Income any income arising from the sale or other disposition of Restricted Investments, from repurchases or redemptions of Restricted Investments, from repayments of loans or advances which constituted Restricted Investments or from any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries, in each case to the extent such amounts increase the amount of Restricted Payments permitted under such covenant pursuant to clause (c)(v) thereof.

For purposes of this definition, the phrase “after-tax” shall mean net of any taxes paid or payable by the applicable Person and its Restricted Subsidiaries and net of any distributions paid pursuant to Section 7.05(13).

Consolidated Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Secured Indebtedness of the Borrower Parties as of such date to (b) Four Quarter Consolidated EBITDA.

Consolidated Total Assets” means the total consolidated assets of the Borrower Parties, as shown on the most recent consolidated balance sheet of the Borrower Parties, determined on a Pro Forma Basis.

Consolidated Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness of the Borrower Parties as of such date to (b) Four Quarter Consolidated EBITDA.

Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent:

(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,

(2) to advance or supply funds:

(a) for the purchase or payment of any such primary obligation; or

(b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or

(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of

34

 

 


 

the primary obligor to make payment of such primary obligation against loss in respect thereof.

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, loan agreement, indenture, mortgage, deed of trust, lease, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Controlled Non-U.S. Subsidiary” means any direct or indirect Subsidiary of the Borrower that is (or is a Subsidiary of) a “controlled foreign corporation” within the meaning of Section 957 of the Code.

Corresponding Tenor” means, with respect to any Available Tenor for an applicable Benchmark Replacement, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

Covered Entity” has the meaning specified in Section 10.25.

Covered Party” has the meaning specified in Section 10.25(a).

Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

Cumulative Amount” has the meaning specified in Section 7.05(c)(viii).

Cure Amount” has the meaning specified in Section 8.03(a).

Cure Equity” has the meaning specified in Section 8.03(a).

Cure Right” has the meaning specified in Section 8.03(a).

Daily Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per annum equal to, for any RFR Loan denominated in Pounds Sterling (the resulting amount rounded upwards, at the Administrative Agent’s reasonable discretion, to the nearest 1/100 of 1%) SONIA for the day (such day, adjusted as applicable as set forth herein, the “SONIA Lookback Day”) that is two (2) Business Days prior to (i) if such RFR Interest Day is a Business Day, such RFR Interest Day or (ii) if such RFR Interest Day is not a Business Day, the Business Day immediately preceding such RFR Interest Day, in each case, as such SONIA is published by the SONIA Administrator on the SONIA Administrator’s Website. If by 5:00 pm (London time) on the second (2nd) Business Day immediately following any Sonia Lookback Day, the RFR in respect of such Sonia Lookback Day has not been published on the applicable RFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple RFR has not occurred, then the RFR for such Sonia Lookback Day will be the RFR as published in respect of the first preceding Business Day for which such RFR was published on the RFR Administrator’s Website; provided that any RFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple RFR for no more than three (3) consecutive RFR Interest Days. Any change in Daily Simple RFR due to a change in SONIA shall be effective from and including the effective date of such change in the RFR without notice to the Borrower.

35

 

 


 

Daily Simple SOFR” means, for any day (a “SOFR Interest Day”), an interest rate per annum reasonably determined by the Administrative Agent equal to (the resulting amount rounded upwards, at the Administrative Agent’s reasonable discretion, to the nearest 1/100th of 1%) SOFR for the day (the “SOFR Determination Date”) that is two (2) Business Days prior to (i) such SOFR Interest Day if such SOFR Interest Day is a Business Day or (ii) the Business Day immediately preceding such SOFR Interest Day if such SOFR Interest Day is not a Business Day, as such SOFR is published by the NYFRB (or a successor administrator of the secured overnight financing rate) on the website of the NYFRB, currently at http://www.newyorkfed.org, or any successor source identified by the NYFRB or its successor administrator for the secured overnight financing rate from time to time. If Daily Simple SOFR as determined above would be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor. If SOFR for any SOFR Determination Date has not been published or replaced with a Benchmark Replacement by 5:00 p.m. Eastern time on the second Business Day immediately following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR for the first Business Day preceding such SOFR Determination Date for which SOFR was published in accordance with the definition of “SOFR”; provided that SOFR determined pursuant to this sentence shall be used for purposes of calculating Daily Simple SOFR for no more than three (3) consecutive SOFR Interest Days. If and when Daily Simple SOFR as determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrower, effective on the date of any such change.

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, judicial management, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default” means any event or condition set forth in Section 8.01 that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, in each case, as specified in such Section, would be an Event of Default.

Default Rate” means an interest rate equal to (after as well as before judgment), (a) with respect to any overdue principal for any Loan, the applicable interest rate for such Loan plus 2.00% per annum and (b) with respect to any other overdue amount, including overdue interest, the interest rate applicable to Base Rate Loans plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.

Default Right” has the meaning specified in Section 10.25(b).

Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit within two Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing prior to the time such Loan or participation was required to be made or issued that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including a particular Default or Event of Default, if any) has not been satisfied or waived, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend

36

 

 


 

to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder (unless such Lender notifies the Administrative Agent and the Borrower in writing prior to the time such Loan or participation was to be made or issued that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and with specific details thereof) has not been satisfied or waived) or under other agreements generally in which it commits to extend credit, (c) has failed, within three Business Days after reasonable request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations (provided that the Administrative Agent shall request such confirmation upon reasonable request from any L/C Issuer; provided, further, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such confirmation by the Administrative Agent) or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-In Action; provided that no Lender shall be a Defaulting Lender solely by virtue of (x) the ownership or acquisition by a Governmental Authority of any Equity Interest in that Lender or any direct or indirect parent company thereof 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, or (y) the occurrence of any of the events described in clause (d)(i), (d)(ii) or (d)(iii) of this definition which in each case has been dismissed or terminated prior to the date of this Agreement. Any determination by the Administrative Agent (or the Required Lenders to the extent that the Administrative Agent is a Defaulting Lender) that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written notice of such determination to the Administrative Agent, the Borrower, each L/C Issuer and each Lender, as applicable.

Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by any Borrower Party in connection with an Asset Sale that is so designated as “Designated Non-Cash Consideration” pursuant to a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.

Designated Preferred Stock” means Preferred Stock of the Borrower or any Parent Holding Company, as applicable (other than Excluded Equity), that is issued after the Closing Date for cash and is so designated as Designated Preferred Stock, pursuant to an officer’s certificate of the Borrower delivered to the Administrative Agent, on the issuance date thereof, the cash proceeds of which are contributed to the capital of the Borrower (if issued by the Borrower or any Parent Holding Company) and excluded from the calculation set forth in clause (c) of the first paragraph of Section 7.05.

37

 

 


 

Designation Date” has the meaning specified in Section 2.19(f).

Disposition” or “Dispose” has the meaning specified in the definition of “Asset Sale”.

Disqualified Lender” means (a) each Person identified as a “Disqualified Lender” on a list delivered to PNC or its counsel by the Borrower or its counsel on or prior to May 25, 2022 (as such list may be updated from time to time after the Closing Date with the Administrative Agent’s reasonable approval (such approval not to be unreasonably withheld, conditioned or delayed)), (b) any Company Competitor identified on a list delivered to the Administrative Agent or its counsel by the Borrower or its counsel from time to time, (c) as to any Person referenced in each of clauses (a) and (b) above (the “Primary Disqualified Lender”), (x) any fund advised, administered or managed by, or related to, any Primary Disqualified Lender or (y) any of such Primary Disqualified Lender’s Affiliates, in each case of this clause (c) either identified in writing to the Administrative Agent or its counsel from time to time or otherwise readily identifiable as such on the basis of such fund’s name or Affiliate’s name, as applicable, but excluding, in the case of clause (b) (and except to the extent specifically identified in writing as being a Disqualified Lender pursuant to clause (a)), any Affiliate thereof that is a bona fide debt investment fund or entity primarily engaged in, or that advises funds or other investment vehicles that are primarily engaged in, making, purchasing, holding or otherwise investing in commercial loans, notes, bonds and similar extensions of credit or securities in the ordinary course of its business and only to the extent that no personnel involved with the investment in the relevant Company Competitor (A) makes (or has the right to make or participate with others in making) investment decisions on behalf of, or otherwise cause the direction of the investment policies of, such bona fide debt investment funds or entities or (B) has access to any information (except for information that is publicly available other than by reason of disclosure in violation of (1) Section 10.08 or any other confidentiality agreement by any Agent, any Arranger, any other Secured Party or any of their respective Affiliates or any of their respective Related Parties or (2) any agreement that any Person has with the Borrower, any of its Affiliates or any of its agents, representatives or other Related Parties that any Agent, any Arranger, any other Secured Party or any of their respective Affiliates or any of their respective Related Parties has knowledge of) relating to the Borrower or any of its Subsidiaries and/or any Person that forms part of any of the Borrower’s or any of its Subsidiaries’ business as a result of such bona fide debt investment funds or entities (in each case, other than bona fide investment funds and entities which are primarily engaged in the foregoing activities but whose investment strategies or historical practices include distressed debt and/or “loan to own” investments, which for the avoidance of doubt shall not be excluded from the definition of Disqualified Lenders by virtue of their status as a bona fide debt investment fund or entity)), and (d) any representatives, Related Parties or members of any Agent, any Arranger, any Lender or any other Secured Party or any their respective Affiliates’ or managed or related funds’ deal teams that are engaged primarily as principals in private equity, mezzanine financing or venture capital (or related funds or Affiliates of such Persons); provided that any additional designation permitted by the foregoing shall not apply retroactively to any prior assignment to any Lender or Participant, but shall disqualify any such Persons with respect to any subsequent assignments or participations. Notwithstanding the foregoing, any list of Disqualified Lenders shall only be required to be available to any Lender or Participant on the Platform or another similar electronic system to the extent the Borrower desires to prevent any such Disqualified Lender from being a Lender or Participant. For the purpose of clauses (a) and (b) in the previous sentence, such list shall be made available to the Administrative Agent pursuant to Section 10.02 and any additions, deletions or

38

 

 


 

other modifications to the list of Disqualified Lenders shall become effective within two (2) Business Days after delivery to the Administrative Agent; provided that such additions or other modifications shall be deemed to be effective immediately solely in the instance a Lender or Participant receives notice or obtains knowledge of such addition or modification and thereafter consummates (or engages to consummate) with such new or changed Disqualified Lender an assignment or participation.

Disqualified Stock” means, with respect to any Person, any Equity Interests of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is puttable, redeemable or exchangeable), in each case, at the option of the holder thereof or upon the happening of any event:

(1) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than (a) solely for Qualified Stock and (b) as a result of a change of control or asset sale; provided that any purchase requirement triggered thereby may not become operative until compliance with, in the case of an asset sale, the provisions of Section 7.04 or, in the case of a change of control, the repayment in full of the Obligations),

(2) is convertible or exchangeable for Indebtedness or Disqualified Stock prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of issuance of the respective Disqualified Stock; provided that only the portion of Equity Interests that so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock, or

(3) is redeemable at the option of the holder thereof, in whole or in part, in each case other than solely for Qualified Stock and prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of issuance of the respective Disqualified Stock; provided that only the portion of Equity Interests that so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Borrower or its Subsidiaries or a direct or indirect parent of the Borrower or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries or a direct or indirect parent of the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.

Divided LLC” means a limited liability company which has been formed upon the consummation of an LLC Division.

39

 

 


 

Divided LP” means a limited partnership which has been formed upon the consummation of an LP Division.

Dollar” and “$” mean lawful money of the United States.

Dollar Amount” means, at any time:

(a) with respect to any Loan or Letter of Credit denominated in Dollars, the principal amount thereof then outstanding (or in which such participation is held); and

(b) with respect to any Loan or Letter of Credit denominated in an Alternative Currency or other currency other than Dollars, the principal amount thereof then outstanding in the relevant Alternative Currency, converted to Dollars in accordance with Section 1.08.

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 clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.07(b) (subject to receipt of such consents, if any, as may be required for the assignment of the applicable Loan and/or Commitments to such Person under Section 10.07(b)(iii)).

EMU” means the economic and monetary union as contemplated in the EU Treaty.

EMU Legislation” means the legislative measures of the EMU for the introduction of, changeover to, or operation of the Euro in one or more member states.

Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural resources such as wetlands, flora and fauna.

Environmental Laws” means any and all Laws relating to pollution, the protection of the Environment, and human health and safety (to the extent relating to exposure to Hazardous Materials), including those related to Hazardous Materials, air emissions and discharges to public pollution control systems.

Environmental Liability” means any liability (including any liability for damages, costs of environmental remediation, monitoring or oversight by a Governmental Authority, fines,

40

 

 


 

penalties or indemnities) resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) human exposure to any Hazardous Materials, or (d) the Release or threatened Release of any Hazardous Materials into the Environment, including, in each case, any such liability which any Loan Party has retained contractually.

Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any Capital Stock that arises only by reason of the happening of a contingency that is outside the control of the holder of such Capital Stock (but only until such time such contingent event occurs (if ever)) or any debt security that is convertible into, or exchangeable for, Capital Stock).

Equity Issuance” means any issuance by any Person to any other Person of (a) its Equity Interests for cash, (b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests.

Equity Offering” means any public or private sale on or after the Closing Date of Capital Stock or Preferred Stock of the Borrower or any direct or indirect parent of the Borrower, as applicable (other than Disqualified Stock), other than (a) public offerings with respect to the Borrower’s or such direct or indirect parent’s common stock registered on Form S-4 or Form S-8 or successor form thereto, (b) issuances to any Subsidiary of the Borrower, and (c) any such public or private sale that constitutes an Excluded Contribution or Refunding Capital Stock.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

ERISA Affiliate” means any Person who together with any Loan Party is treated as a single employer 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) or Section 4001 of ERISA.

ERISA Event” means (a) a Reportable Event with respect to a Plan; (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA 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 Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Section 4245 of ERISA); (d) the filing of a written notice of intent to terminate or the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, respectively, (e) the institution by the PBGC of, or the receipt of any notice by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator indicating an intent by the PBGC to institute, proceedings to terminate a Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,

41

 

 


 

any Plan or Multiemployer Plan; (g) the determination that any Plan is considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA; (h) the determination that any Multiemployer Plan is considered a plan in “endangered”, “critical”, or “critical and declining” status within the meaning of Section 432 of the Code or Section 305 of ERISA; (i) 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 any Loan Party or any ERISA Affiliate; or (j) the conditions for the imposition of a Lien under Section 430(k) of the Code or Section 303(k) of ERISA shall have been met with respect to any Plan.

Erroneous Payment” has the meaning assigned to it in Section 9.19(a).

Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 9.19(c).

Erroneous Payment Impacted Class” has the meaning specified in Section 9.19(c).

Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 9.19(c).

Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 9.19(c).

ESG” has the meaning specified in Section 10.01.

ESG Ratings” has the meaning specified in Section 10.01.

ESG Amendment” has the meaning specified in Section 10.01.

ESG Pricing Provisions” has the meaning specified in Section 10.01.

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.

EU Treaty” means the Treaty on the European Union.

EURIBOR” has the meaning specified in the definition of “EURIBOR Rate”.

EURIBOR Lookback Day” has the meaning specified in the definition of “EURIBOR Rate”.

EURIBOR Rate” means, with respect to any Alternative Currency Borrowing denominated in Euros and for any Interest Period, the interest rate per annum equal to (the resulting amount rounded upwards, at the Administrative Agent’s reasonable discretion, to the nearest 1/100th of 1%) the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”) as administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a period equal in length to such Interest Period, as displayed on the applicable Bloomberg page (or on any successor or substitute page or service providing such quotations as reasonably determined by the Administrative Agent and the Borrower from time to

42

 

 


 

time; in each case, the “EURIBOR Reference Rate”) at approximately 11:00 a.m. (Brussels time) two (2) Business Days prior to the commencement of such Interest Period; provided, that if by such time the EURIBOR Reference Rate in respect of such day has not been so published, or if such day is not a Business Day, then the EURIBOR Reference Rate for such day will be the EURIBOR Reference Rate as published in respect of the first preceding Business Day for which such EURIBOR Reference Rate was published thereon; provided further that any EURIBOR Reference Rate so determined based on the first preceding Business Day shall be utilized for purposes of calculation of the EURIBOR Rate for no more than three (3) consecutive Business Days (any such day, collectively, the “EURIBOR Lookback Day”).

EURIBOR Reference Rate” has the meaning specified in the definition of “EURIBOR Rate”.

Euro” and “” means the single currency of the Participating Member States introduced in accordance with the provisions of Article 109(i)4 of the EU Treaty.

€STR” means a rate equal to the Euro Short Term Rate as administered by the €STR Administrator.

€STR Administrator” means the European Central Bank (or any successor administrator of the Euro Short Term Rate).

€STR Administrator’s Website” means the European Central Bank’s website, currently at http://www.ecb.europa.eu, or any successor source for the Euro Short Term Rate identified as such by the €STR Administrator from time to time.

€STR Daily RFR means, for any day (an “€STR RFR Day”), a rate per annum reasonably determined by the Administrative Agent, for any Alternative Currency Loan denominated in Euros, in an amount equal to (the resulting amount rounded upwards, at the Administrative Agent’s reasonable discretion, to the nearest 1/100 of 1%) €STR for the day (such day, adjusted as applicable as set forth herein, the “€STR Lookback Day”) that is two (2) Business Days prior to (A) if such €STR RFR Day is a Business Day, such €STR RFR Day or (B) if such €STR RFR Day is not a Business Day, the Business Day immediately preceding such €STR RFR Day, in each case, as such €STR is published by the €STR Administrator on the €STR Administrator’s Website; provided that if the adjusted rate as determined above would be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement. If by 5:00 pm (Brussels time) on the second (2nd) Business Day immediately following any €STR Lookback Day, €STR in respect of such €STR Lookback Day has not been published on the €STR Administrator’s Website and a Benchmark Replacement Date with respect to €STR Daily RFR has not occurred, then €STR for such €STR Lookback Day will be €STR as published in respect of the first preceding Business Day for which such €STR was published on the €STR Administrator’s Website; provided that any €STR determined pursuant to this sentence shall be utilized for purposes of calculation of €STR Daily RFR for no more than three (3) consecutive €STR RFR Days. Any change in €STR Daily RFR due to a change in €STR shall be effective from and including the effective date of such change in €STR without notice to the Borrower.

43

 

 


 

€STR Term RFR” means, with respect to Euros for any Interest Period, a rate per annum reasonably determined by the Administrative Agent, for any Alternative Currency Loan denominated in Euros, equal to (the resulting amount rounded upwards, at the Administrative Agent’s reasonable discretion, to the nearest 1/100 of 1%) the €STR Term RFR Forward Looking Rate; provided that if the adjusted rate as determined above would be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement.

€STR Term RFR Forward Looking Rate” means, with respect to Euros for any Interest Period, the forward-looking term rate for a period comparable to such Interest Period based on €STR that is published by an authorized benchmark administrator and is displayed on a screen or other information service, each as mutually identified or mutually selected by the Administrative Agent and the Borrower in their reasonable discretion at approximately a time and as of a date prior to the commencement of such Interest Period mutually determined by the Administrative Agent and the Borrower in their reasonable discretion.

Eurocurrency Rate Lookback Days” means, collectively, the EURIBOR Lookback Day and the CDOR Lookback Day.

Event of Default” has the meaning specified in Section 8.01.

Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

Exchange Rate” means on any day with respect to any currency other than Dollars, the rate at which such currency may be exchanged into Dollars in the London foreign exchange market at or about 11:00 a.m. London time (or New York City time, as applicable) on a particular day as displayed by ICE Data Services as the “ask price”, or as displayed on such other information service which publishes that rate of exchange from time to time in place of ICE Data Services (or if such service ceases to be available, the equivalent of such amount in Dollars as determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted), at or about 10:00 a.m. (New York City time) on such date for the purchase of Dollars for delivery two Business Days later.

Excluded Accounts” means, the following deposit, securities and other accounts to the extent used solely for such purposes: (1) payroll, healthcare and other employee wage and benefit accounts, (2) tax accounts, including, without limitation, sales tax accounts, (3) escrow, defeasance and redemption accounts, (4) fiduciary or trust accounts, (5) disbursement accounts, (6) cash collateral accounts subject to Permitted Liens, (7) deposit accounts utilized solely to hold amounts on deposit of any party other than the Borrower, a Guarantor or any Subsidiary thereof and (8) the funds or other property held in or maintained for such purposes in any such account described in clauses (1) through (7).

Excluded Contributions” means the net cash proceeds and Cash Equivalents, or the Fair Market Value of other assets, received by the Borrower after the Closing Date from:

44

 

 


 

(1) contributions to its common equity capital, and

(2) the sale of Capital Stock (other than Excluded Equity) of the Borrower, in each case that are utilized to make a Restricted Payment pursuant to clause (10) of the second paragraph of Section 7.05. Excluded Contributions will be excluded from the calculation set forth in clause (c) of the first paragraph of Section 7.05.

Excluded Equity” means (i) Disqualified Stock, (ii) any Equity Interests issued or sold to a Restricted Subsidiary or any employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries or a direct or indirect parent of the Borrower (to the extent such employee stock ownership plan or trust has been funded by the Borrower or any Subsidiary or a direct or indirect parent of the Borrower), (iii) any Equity Interest that has already been used or designated (x) as (or the proceeds of which have been used or designated as) Designated Preferred Stock, an Excluded Contribution or Refunding Capital Stock, or (y) to increase the amount available under clause (5)(a) of the second paragraph under Section 7.05 or clause (14) of the definition of “Permitted Investments” or is proceeds of Indebtedness referred to in clause (14)(b) of the second paragraph in Section 7.05 and (iv) any Cure Equity.

Excluded Property” means, with respect to any Loan Party or any direct or indirect Subsidiary of such Loan Party,

(a) (i) any fee-owned real property not constituting Material Real Property or located in any non-U.S. jurisdiction and any real property leasehold or subleasehold interests and the last day of any term of any lease of real property, (ii) any portion of Material Real Property that contains improvements located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” and (iii) any property that is located in a jurisdiction that imposes mortgage recording taxes, intangibles tax, documentary tax or similar recording fees or taxes,

(b) (i) motor vehicles, airplanes and other assets or goods subject to certificates of title to the extent a Lien thereon cannot be perfected by filing a UCC financing statement, (ii) Letter-of-Credit Rights (as defined in the UCC) (other than those constituting supporting obligations of other Collateral) to the extent a Lien thereon cannot be perfected by filing a UCC financing statement and (iii) to the extent a Lien thereon cannot be perfected by filing a UCC financing statement, Commercial Tort Claims (as defined in the UCC) with a claim value of less than the greater of (x) $25,000,000 and (y) 10% of Four Quarter Consolidated EBITDA, individually,

(c) if the granting of a pledge or security interest or perfection thereof in the assets owned by or Equity Interests of any existing and subsequently acquired or organized direct or indirect wholly-owned Restricted Subsidiary of the Borrower, would, in each case, result in adverse tax, accounting or regulatory consequences that are not de minimis (including, without limitation, under Section 956 of the Code or as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code) to the Borrower or any of their Subsidiaries as reasonably determined by the Borrower, it being understood, for the avoidance of doubt, that the failure of CarGurus Securities Corp. or any successor thereto to remain a Massachusetts Security

45

 

 


 

Corporation as a result of such grant or perfection shall be deemed to be an adverse tax or regulatory consequence,

(d) any goods, chattel paper, investment property, documents of title, instruments, money, intangibles and other assets, in each case, of or in which pledges or security interests in favor of the Collateral Agent are prohibited by applicable Law, rule or regulation (including, without limitation, any (x) requirement to obtain the consent of any Governmental Authority or third person, unless such consent has been obtained and (y) restrictions in respect of margin stock, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations) or by any contract binding on such assets at the time of its acquisition and not entered into in contemplation thereof, requires government or third party consents that have not been obtained (provided that there shall be no obligation to obtain such consent) or creates a right of termination in favor of any governmental or other third party or could result in material adverse accounting or regulatory consequences, in each case, as determined by the Borrower in good faith; provided, that any such limitation described in this clause (d) on the security interests granted under the Collateral Documents shall only apply to the extent that any such prohibition could not be rendered ineffective pursuant to the UCC or any other applicable Law or principles of equity and shall not apply (where the UCC is applicable) to any proceeds or receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition,

(e) any governmental or regulatory licenses (but not the proceeds thereof) or state or local franchises, charters and authorizations, to the extent security interests in favor of the Collateral Agent in such licenses, franchises, charters or authorizations are prohibited or restricted thereby; provided that (i) any such limitation described in this clause (e) on the security interests granted shall only apply to the extent that any such prohibition or restriction could not be rendered ineffective pursuant to the Uniform Commercial Code of any applicable jurisdiction or any other applicable Law or principles of equity and shall not apply (where the UCC is applicable) to any proceeds or receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition and (ii) in the event of the termination or elimination of any such prohibition or restriction contained in any applicable license, franchise, charter or authorization, a security interest in such licenses, franchises, charters or authorizations shall be automatically and simultaneously granted under the applicable Collateral Documents and such licenses, franchises, charters or authorizations shall be included as Collateral,

(f) Equity Interests in (A) [reserved], (B) any not-for-profit Subsidiary, (C) any captive insurance Subsidiary, (D) any special purpose securitization vehicle (or similar entity), (E) any Structured Financing Subsidiary, (F) any Unrestricted Subsidiary, (G) any Person which is acquired after the date hereof to the extent and for so long as such Equity Interests are pledged in respect of Acquired Indebtedness and such pledge constitutes a Permitted Lien, and (H) any Person that is either (y) not a Wholly-Owned Restricted Subsidiary or (z) an Excluded Subsidiary (other than (i) CarOffer, (ii) subject to clause (c) above, any Massachusetts Security Corporation, (iii) any Excluded Subsidiary which owns Material Intellectual Property, (iv) subject to clause (c) above and clause (o) below in this definition, any FSHCO or Controlled Non-U.S. Subsidiary directly owned by a Loan Party which is not, in any such case, an Immaterial Subsidiary, and (v) non-Wholly Owned Restricted Subsidiaries to the extent that (1) the Borrower, directly or indirectly, owns more than 50% of the Capital Stock of such Restricted Subsidiary, (2) such Restricted Subsidiary’s financials are consolidated with the financial statements of the other

46

 

 


 

Borrower Parties (other than any Subsidiary of such Restricted Subsidiary), and (3) (I) a pledge of the Equity Interests in such Restricted Subsidiary is not prohibited by both (Y) any applicable joint venture agreement, shareholder agreement, or organizational agreement, except to the extent that the term in such agreement providing for such prohibition, breach, default or termination or requiring such consent is ineffective under applicable law; provided, that this exclusion shall not apply if (x) if such prohibition was agreed to in order to circumvent the pledge of such Equity Interests under the Loan Documents, (y) the only consent to permit such a pledge is a consent from a Loan Party or a Wholly Owned Subsidiary of a Loan Party or (z) requisite consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate any Loan Party or its Subsidiaries to seek or obtain any such consent) or (Z) applicable Law and (II) a pledge thereof to secure the Obligations (X) would only require the consent of a Loan Party or a Wholly Owned Restricted Subsidiary of a Loan Party (and not the consent of any other party or Person) for any prohibition, breach or default under any such joint venture agreement, shareholder agreement or organizational agreement governing such Equity Interests or such non-Wholly Owned Restricted Subsidiary, (Y) would not give any other party or Person (other than a Loan Party or a Wholly Owned Subsidiary of a Loan Party) to any such joint venture agreement, shareholder agreement or organizational agreement governing such Equity Interests or such non-Wholly Owned Restricted Subsidiary the right to terminate its obligations thereunder (other than customary non-assignment provisions that are ineffective under Article 9 of the UCC or other applicable law); provided, that this exclusion shall not apply if such termination right was agreed to in order to circumvent the pledge of such Equity Interests under the Loan Documents, and (Z) would not violate applicable Law),

(g) any lease, license or other agreement or any goods or other property subject to a purchase money security interest, Capitalized Lease Obligation or similar arrangement in each case permitted to be incurred under this Agreement, to the extent that a grant of a security interest therein would violate or invalidate such lease, license, capital lease or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto (other than a Loan Party or their Wholly Owned Subsidiaries),

(h) (i) “intent-to-use” trademark applications prior to the filing and acceptance of a “Statement of Use” or “Amendment to Allege Use” and (ii) Margin Stock,

(i) any motor vehicles or other goods or assets sold pursuant to a Qualified Factoring Transaction or Qualified Structured Financing or other factoring or receivables arrangement permitted hereunder,

(j) any goods, chattel paper, investment property, documents of title, instruments, money, intangibles or other assets of (including Equity Interests held by) (i) any Non-U.S. Subsidiary or any direct or indirect subsidiary of a Non-U.S. Subsidiary, (ii) any FSHCO or any direct or indirect Subsidiary of a FSHCO, (iii) any Unrestricted Subsidiary, (iv) any not-for-profit Subsidiary, (v) any captive insurance Subsidiary or (vi) any special purpose securitization vehicle (or similar entity or Person), including any Structured Financing Subsidiary,

(k) any lease, license, permit, franchise, charter, authorization, consent or agreement (and the assets subject thereto) to the extent that a grant of a security interest therein would violate or invalidate such lease, license, permit, franchise, charter, authorization, consent or

47

 

 


 

agreement or result in the creation of a security interest thereunder or create a right of termination or cancellation in favor of any other party thereto (other than the Borrower or a Guarantor) or otherwise require consent thereunder (provided that there shall be no obligation to obtain such consent); provided that any such limitation described in this clause (k) shall only apply to the extent that any such prohibition or restriction could not be rendered ineffective pursuant to the Uniform Commercial Code of any applicable jurisdiction or any other applicable Law or principles of equity and shall not apply (where the UCC is applicable) to any proceeds or receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition,

(l) cash to secure letter of credit reimbursement obligations to the extent such letters of credit are permitted by this Agreement (excluding Cash Collateral securing L/C Obligations under this Agreement),

(m) (i) Excluded Accounts, and (ii) any assets (other than deposit accounts and securities accounts) which can be perfected solely by “control” (control agreements or perfection by “control” shall not be required in any event (other than equity interests and debt instruments which are not otherwise Excluded Property and which are not otherwise covered by perfection exclusions in the Loan Documents)),

(n) any property acquired after the Closing Date that is secured pursuant to Acquired Indebtedness permitted hereunder (not incurred in contemplation of the acquisition by the Borrower or applicable Guarantor) of such property, to the extent that the granting of a security interest in such property would be prohibited under the terms (such prohibition not imposed in contemplation hereof) of such Indebtedness,

(o) Voting Stock in excess of 65.0% of the Voting Stock of any first tier Non-U.S. Subsidiary, Controlled Non-U.S. Subsidiary or of any FSHCO,

(p) [reserved], and

(q) any acquisition agreement in connection with any acquisition or Investment and any rights therein or arising thereunder (except any identifiable cash proceeds or the rights to receive any identifiable cash proceeds pursuant to such acquisition).

Notwithstanding anything contained herein to the contrary, other goods, chattel paper, investment property, documents of title, instruments, money, intangibles and other assets shall be deemed to be “Excluded Property” if the Administrative Agent and the Borrower mutually agree that the cost or other consequences (including, without limitation, regulatory, accounting or tax consequences) of obtaining or perfecting a security interest in such goods, chattel paper, investment property, documents of title, instruments, money, intangibles and other assets is excessive in relation to either the value of such goods, chattel paper, investment property, documents of title, instruments, money, intangibles and other assets as Collateral or to the practical benefit of the Lenders of the security afforded thereby. Notwithstanding anything herein or the Collateral Documents to the contrary, Excluded Property shall not include any Proceeds (as defined in the UCC), substitutions or replacements of any Excluded Property (unless such

48

 

 


 

Proceeds, substitutions or replacements would otherwise constitute Excluded Property referred to above).

Notwithstanding anything contained herein to the contrary, in no event shall foreign-law governed security documents, filings, consents or corporate or organizational action be required, including with respect to any share pledges and any intellectual property registered in any non-U.S. jurisdiction.

Excluded Subsidiary” means (i) CarOffer and (ii) any direct or indirect Subsidiary of the Borrower that is (a) an Unrestricted Subsidiary, (b) a joint venture or a Subsidiary that is not a Wholly Owned Restricted Subsidiary of the Borrower, (c) an Immaterial Subsidiary, (d) a FSHCO or Controlled Non-U.S. Subsidiary (or any direct or indirect Subsidiary of a FSHCO or Controlled Non-U.S. Subsidiary), (e) established or created pursuant to clause (14)(g) of the second paragraph of Section 7.05 and meeting the requirements of the proviso thereto; provided that such Subsidiary shall only be an Excluded Subsidiary for the period immediately prior to such acquisition, (f) a Non-U.S. Subsidiary, (g) a Subsidiary that is prohibited or restricted by applicable Law (including financial assistance, fraudulent conveyance, preference, thin capitalization or other similar Laws or regulations) from guaranteeing the Facilities, or which would require governmental (including regulatory) or consent, third party approval, license or authorization to provide a guarantee unless, such consent, third party approval, license or authorization has been received, (h) any Subsidiary that is prohibited or restricted from guaranteeing the Facilities by any Contractual Obligation in existence on the Closing Date for so long as any such Contractual Obligation exists (or, in the case of any newly acquired Subsidiary, in existence) at the time of acquisition thereof but not entered into in contemplation of this exclusion and for so long as any such Contractual Obligation exists) (it being understood that AutoList, Inc. is not subject to any prohibition as of the Closing Date), (i) a Subsidiary with respect to which a guarantee by it of the Facilities would reasonably be expected to result in material adverse tax, accounting or regulatory consequences to the Borrower or any of its Subsidiaries and Affiliates as reasonably determined in good faith by the Borrower, (j) any Structured Financing Subsidiary, (k) not-for-profit subsidiaries, (l) [reserved], (m) Subsidiaries that are special purpose entities, (n) captive insurance subsidiaries, (o) any Massachusetts Security Corporation, (p) any broker-dealer Subsidiaries, (q) any other Subsidiary with respect to which the Administrative Agent and the Borrower mutually agree that the cost or other consequences of guaranteeing the Facilities (including any adverse tax, accounting or regulatory consequences that are not de minimis) outweigh the benefits to be obtained by the Lenders therefrom, and (r) any other Subsidiary as mutually agreed between the Borrower and the Administrative Agent; provided that if the Borrower so elects in its sole discretion and a Subsidiary executes the Guaranty as a “Subsidiary Guarantor,” then it shall not constitute an “Excluded Subsidiary” (unless released from its obligations under the Guaranty, as a “Subsidiary Guarantor” in a manner not prohibited by the terms hereof and thereof). Notwithstanding the foregoing, CarOffer shall not be an “Excluded Subsidiary” solely at any time when all of the following are satisfied (as reasonably determined in good faith by the Borrower): (w) CarOffer is a Wholly Owned Subsidiary of the Borrower, (x) none of the subclauses of clause (ii) of the first sentence of this definition have been satisfied, (y) no adverse consequences could reasonably be expected to result in respect of the Borrower or any of its Subsidiaries from CarOffer being a Subsidiary Guarantor under the Loan Documents with respect to any existing, prospective or new Qualified Factoring Transaction or Structured Financing and (z) the counterparties and/or lenders (or prospective counterparties and/or lenders) to any existing, prospective or new Qualified Factoring

49

 

 


 

Transaction or Structured Financing would not require additional pricing or additional limitations or restrictions on company-favorable provisions under such existing, prospective or new Qualified Factoring Transaction or Structured Financing; provided, however, if (w) CarOffer becomes a Wholly Owned Subsidiary of the Borrower, (x) CarOffer does not otherwise constitute an Excluded Subsidiary by virtue of any of the subclauses of clause (ii) of the first sentence this definition, (y) there is no existing Qualified Factoring Transaction or Structured Financing at such time of determination, and (z) an Event of Default has occurred and is continuing at the time of the consummation of a new Qualified Factoring Transaction or Structured Financing, then CarOffer shall not be an “Excluded Subsidiary” in connection with the consummation of such new Qualified Factoring Transaction or Structured Financing even if (1) adverse consequences could reasonably be expected to result in respect of the Borrower or any of its Subsidiaries from CarOffer being a Subsidiary Guarantor under the Loan Documents with respect to any such new Qualified Factoring Transaction or Structured Financing and/or (2) the counterparties and/or lenders (or prospective counterparties and/or lenders) to any prospective Qualified Factoring Transaction or Structured Financing would require additional pricing or additional limitations or restrictions on company-favorable provisions under such new Qualified Factoring Transaction or Structured Financing; provided further that if, at the time of or at any time after CarOffer becomes a Subsidiary Guarantor or is no longer an Excluded Subsidiary, (x) CarOffer is no longer a Wholly Owned Subsidiary of the Borrower, (y) CarOffer otherwise constitutes an Excluded Subsidiary by virtue of clause (ii) of the first sentence this definition, or (z) so long as no Event of Default has occurred and is continuing at the time of the consummation of a new Qualified Factoring Transaction or Structured Financing, either (i) adverse consequences could reasonably be expected to result in respect of the Borrower or any of its Subsidiaries from CarOffer being a Subsidiary Guarantor under the Loan Documents with respect to any existing, prospective or new Qualified Factoring Transaction or Structured Financing or (ii) the counterparties and/or lenders (or prospective counterparties and/or lenders) to any existing, prospective or new Qualified Factoring Transaction or Structured Financing would require additional pricing or additional limitations or restrictions on company-favorable provisions under such existing, prospective or new Qualified Factoring Transaction or Structured Financing, then CarOffer shall be deemed to no longer be a Subsidiary Guarantor (and shall instead be deemed to be an Excluded Subsidiary) and the Secured Parties agree to take such actions as are necessary or reasonably requested by the Borrower or CarOffer to effectuate CarOffer no longer being a Subsidiary Guarantor (and instead being an Excluded Subsidiary).

Excluded Swap Obligation” means, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful 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) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to any applicable keepwell, support, or other agreement for the benefit of such Guarantor), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) the Commodity Exchange Act, at the time the guarantee of (or

50

 

 


 

grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and Hedge Bank applicable to such Swap Obligation.

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any 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 such Lender acquires an interest in a Loan or Commitment (other than any Lender acquiring an interest in a Loan or Commitment pursuant to a request by any Loan Party under Section 3.08) or changes its lending office, except in each case to the extent that, pursuant to Section 3.01, additional 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 changes its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(h) and (d) any Taxes imposed under FATCA.

Executive Order” means Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)).

Existing Loans” has the meaning specified in Section 2.19(a).

Existing Revolving Tranche” has the meaning specified in Section 2.19(a).

Existing Tranche” has the meaning specified in Section 2.19(a).

Extended Loans” has the meaning specified in Section 2.19(a).

Extended Loans Agent” has the meaning specified in Section 2.19(a).

Extended Revolving Commitments” has the meaning specified in Section 2.19(a).

Extended Revolving Tranche” has the meaning specified in Section 2.19(a).

Extended Tranche” has the meaning specified in Section 2.19(a).

Extending Lender” has the meaning specified in Section 2.19(b).

Extension” has the meaning specified in Section 2.19(b).

Extension Amendment” has the meaning specified in Section 2.19(c).

51

 

 


 

Extension Date” has the meaning specified in Section 2.19(d).

Extension Election” has the meaning specified in Section 2.19(b).

Extension Request” has the meaning specified in Section 2.19(a).

Facility” or “Facilities” means the Revolving Credit Facility and/or the Letter of Credit Sublimit, as the context may require.

Factoring Transaction” means any transaction or series of transactions that may be entered into by any Borrower Party pursuant to which any Borrower Party may sell, convey, assign or otherwise transfer Qualified Assets (which may include a backup or precautionary grant of security interest in such Qualified Assets so sold, conveyed, assigned or otherwise transferred or purported to be so sold, conveyed, assigned or otherwise transferred) to any Person that is not a Restricted Subsidiary; provided that any such Person that is a Subsidiary meets the qualifications in